The USDA published proposed revisions to its EAJA regulations on March 20, 2002, at 67 FR 12898 through 12903. The Department solicited comments on the proposed rule, but did not receive any. Accordingly, the Department is publishing the proposed rule as a final rule without changes.

In the Small Business Regulatory Enforcement Fairness Act of 1996 (“SBREFA”), Pub. L. 104-121, Title II, Mar. 29, 1996, 100 Stat. 857 to 874, Congress amended EAJA in two significant respects with regard to administrative proceedings.

First, Congress amended 5 U.S.C. 504(a) to add a new basis for recovery under EAJA. Under prior law, only a “prevailing party” other than the United States in an adversary adjudication before an agency was eligible for recovery of fees and expenses. 5 U.S.C. 504(a)(1). Pursuant to new paragraph (a)(4), a party to an adversary adjudication arising from an agency action to enforce the party's compliance with a statutory or regulatory requirement may also be entitled to reimbursement of fees and expenses, even though not a “prevailing party.” In those enforcement cases where the demand by the agency is “substantially in excess” of the decision of the adjudicative officer and is “unreasonable” when compared with the eventual decision under the facts and circumstances of the case, the agency adjudicative officer is directed to award to an eligible party the fees and other expenses related to defending against the excessive demand. Award is qualified if the party has committed a willful violation of law or otherwise acted in bad faith, or special circumstances make an award unjust.

SBREFA further amended section 504(b)(1) to add new subparagraph (F), which defines the term “demand” as “the express demand of the agency which led to the adversary adjudication, but does not include a recitation by the agency of the maximum statutory penalty (i) in the administrative complaint, or (ii) elsewhere when accompanied by an express demand for a lesser amount.”

SBREFA also added, in 5 U.S.C. 504(b)(1)(B), a new category of applicants eligible for fees based on a claim of excessive demand. In addition to the other categories of eligible applicants, a small entity as defined in 5 U.S.C. 601 will be eligible for reimbursement with respect to a claim of excessive demand in a regulatory or statutory enforcement action.

The second major change, in 5 U.S.C. 504(b)(1)(A), increased from $75 per hour to $125 per hour the maximum rate for fees awardable. The qualifying language “unless the agency determines by regulation that an increase in the cost of living or a special factor, such as the limited availability of qualified attorney or agents for the proceeding involved justifies a higher fee” remains. Departmental rules at 7 CFR 1.186 currently implementing EAJA attorney fees set a cap of $75 per hour. Amended language at 7 CFR 1.186 reflects the statutory increase to $125 per hour.

In view of the legislative changes, the Department is revising its regulations to conform to statute. In addition, the Department is making minor changes to modify obsolete provisions related to effective dates, and to correct minor errors, and to make minor stylistic changes.

The Department retains its stance concerning the applicability of EAJA to National Appeals Division proceedings as set forth in the preamble to the final rule for National Appeals Division rules of procedure at 64 FR 33367, June 23, 1999.

This rule has been reviewed under Executive Order No. 12866 and has been determined not to be a “significant regulatory action” since it will not have an annual effect on the economy of $100 million or more or adversely and materially affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, of State, local or tribal governments or communities. This rule will not create any serious inconsistencies, or otherwise materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof, and does not raise novel legal or policy issues arising out of legal mandates, the President's priorities or principles set forth in E.O. 12866. Therefore, this rule has not been reviewed by the Office of Management and Budget.

USDA certifies that this rule will not have a significant impact on a substantial number of small entities as defined in the Regulatory Flexibility Act, Pub. L. No. 96-534, as amended (5 U.S.C. 601 et seq. ).

USDA has determined that the provisions of the Paperwork Reduction Act as amended, 44 U.S.C. chapter 35, do not apply to any collections of information contained in this rule because any such collections of information are made during the conduct of administrative action involving an agency against specific individuals or entities. 5 CFR 1320.4(a)(2).

Section 1601(c) of the 2002 Act requires that regulations needed to implement Title I of the 2002 Act, which includes this program, be promulgated without regard to the notice and comment provisions of 5 U.S.C. 553 or the Statement of Policy of the Secretary of Agriculture (the Secretary) effective July 24, 1971 (36 FR 13804) relating to notices of proposed rulemaking and public participation in rulemaking. These regulations are thus issued as final.

This rule was determined to be significant for the purposes of Executive Order 12866 and has been reviewed by the Office of Management and Budget.

The title and number of the Federal assistance program found in the Catalog of Federal Domestic Assistance to which this final rule applies is:

The Regulatory Flexibility Act is not applicable to this rule because the Commodity Credit Corporation (CCC) is not required by 5 U.S.C. 553 or any other provision of law to publish a notice of proposed rulemaking on the subject matter of this rule.

The environmental impacts of this final rule have been considered under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq. , the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and FSA's regulations for compliance with NEPA, 7 CFR part 799. FSA has completed a final environmental assessment and concluded that the proposed action will have no significant impacts upon the human environment as documented through the completion of a Finding of No Significant Impact (FONSI). A copy of the final environmental assessment and FONSI are available for inspection and review upon request.

This program is not subject to Executive Order 12372, which requires consultation with State and local officials. See the notice related to 7 CFR part 3015, subpart V, published at 48 FR 29115 (June 24, 1983).

Title II of the Unfunded Mandates Reform Act of 1995 does not apply to this rule because CCC is not required by 5 U.S.C. 553 or any other law to publish a notice of proposed rulemaking about this rule. Also, this rule contains no mandates as defined in sections 202 and 205 of UMRA.

Section 1601(c) of the 2002 Act requires that the regulations necessary to implement these provisions be issued as soon as practical after the date of enactment of Pub. L. 107-171 and that such regulations shall be issued without regard to the notice and comment provisions of 5 U.S.C. 553. Section 1601(c) also requires that the Secretary use the authority in section 808 of the Small Business Regulatory Enforcement Fairness Act of 1996, Pub. L. 104-121 (SBREFA), which allows an agency to forgo SBREFA's usual 60-day Congressional review delay of the effective date of a major regulation if the agency find that there is good cause to do so. These regulations affect the planting and marketing decisions of a large number of agricultural producers. Accordingly, this rule is effective upon filing for public inspection by the Office of the Federal Register.

Section 1601(c) of the 2002 Act provides that the promulgation of regulations and the administration of Title I of the 2002 Act shall be done without regard to chapter 5 of title 44 of the United States Code (the Paperwork Reduction Act). Accordingly, these regulations and the forms and other information collection activities needed to administer the program authorized by these regulations are not subject to review by the Office of Management and Budget under the Paperwork Reduction Act.

FSA is committed to compliance with the Government Paperwork Elimination Act (GPEA) and the Freedom to E-File Act, which require Government agencies in general and FSA in particular to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. The forms and other information collection activities required for participation in the program implemented under this rule are not yet fully implemented for the public to conduct business with FSA electronically. However, the application form will be available electronically through the USDA eForms Web site at http://www.sc.egov.usda.gov for downloading. The regulation will be available at FSA's Price Support Division internet site at http://www.fsa.usda.gov/dafp/psd . Applications may be submitted at the FSA county offices, by mail or by FAX. At this time, electronic submission is not available because signatures from multiple producers with shares in the apple operation's production are required. Still, full implementation of electronic submission is underway.

Section 10105 of the 2002 Act directs the Secretary of Agriculture to use $94 million of funds of the Commodity Credit Corporation (CCC) to provide assistance to producers for loss of markets during the 2000 crop year.

Apples are grown in every state in the continental United States, and are grown commercially in 36 states. During the past few years a number of factors have produced a serious economic crisis that threatens the existence of apple producers throughout the United States. Twenty years of increasing world production, stagnant domestic consumption, natural disasters and low-priced juice imports have altered the blueprint for economic success in the apple industry.

This rule addresses the situation by continuing with an ongoing series of rulemaking that authorizes continuation of a program for the market loss of apples for 2000 crop production utilizing the forgoing authority. The payments provided by this rule will offset a portion of the per-bushel losses producers have incurred marketing apples in the U.S. Those eligible will receive an immediate payment to help pay operating expenses and meet other financial obligations.

Section 801 of Public Law 106-387 authorized the first Apple Market Loss Assistance Program (AMLAP I) for the 1998 and 1999 crops of apples. Regulations for that program were published on March 8, 2001 (66 FR 13839). A similar program (AMLAP II) was authorized in section 741 of Public Law 107-76, as amended by Public Law 101-117, for the 2000 crop of apples, which provided that there could be no duplicative benefits made under another act for the same losses covered by AMLAP I. Because there was no exemption from rulemaking, as provided in section 1601(c) of the 2002 Act, a proposed rule was issued on July 19, 2002 for AMLAP II (67 FR 47477), and a final rule was published on September 12, 2002 (67 FR 57719).

The 2002 Act does not contain any reference to duplicative payments. Because (1) the 2002 Act was later enacted, and there is no legislative history to indicate that Public Law 107-76, as amended by Public Law 107-117, was to be applied to subsequently-enacted statutory provisions, and (2) the funds available to make payments under AMLAP II are not sufficient to cover all of the losses incurred by producers with respect to their 2000 crop of apples, AMLAP III payments made to producers who receive AMLAP II payments are not considered duplicative payments, which are prohibited under AMLAP II.

The 2002 Act provides that producers of apples can receive a payment on a per-pound basis for 2000-crop production from a qualifying operation, up to a maximum of 5 million pounds per separate apple operation. To be eligible, apple producers must: (1) Have produced and harvested apples during the 2000 crop year, and (2) apply for cash payments during the application period for each apple operation. The 2002 Act also specified that benefits under the program would not be subject to payment or income eligibility limitations, other than those provided for in the statute. Therefore, producers do not have to be in the business of producing and marketing agricultural products at the time of application if the producer was actively producing and marketing agricultural products during the 2000 crop year. At the close of the sign-up period, a national per-pound payment rate will be determined by dividing the available $94,000,000 by the total pounds of apples from all applicants, with no operation exceeding 5 million pounds. Because funds for this program are fixed, the national average payment rate and individual payments can only be calculated after the total eligible quantity of apple production has been determined. Information provided on applications will be subject to verification by FSA. Applications to be verified will be selected randomly. Penalties for false certifications can be easily assessed and are expected to minimize such certifications. Apple operations may, during the application period, apply in person at FSA county offices during regular business hours. Alternatively, program applications may be obtained by mail, telephone, and facsimile from their designated FSA county office or obtained via the Internet. The Internet Web site is located at http://www.fsa.usda.gov/dafp/psd/.

Congress mandated that, by 2005, the U.S. Department of Justice must complete deployment at all ports-of-entry (POE) of an entry-exit system that integrates the available alien arrival and departure data that exists in the systems of the Department and the U.S. Department of State (DOS). The Immigration and Naturalization Service Data Management Improvement Act of 2000, Public Law 106-215, 114 Stat. 337 (2000), codified, as amended, at 8 U.S.C. 1365a. This system also must include the arrival and departure for any visitor who transits through the air and seaports and is admitted under the Visa Waiver Program.

The Visa Waiver Program (VWP) permits nationals from participating countries to apply for admission to the United States for a duration of 90 days or fewer, as nonimmigrant visitors for business or pleasure, without first obtaining a nonimmigrant visa, provided that all other statutory and regulatory requirements are met. If arriving by air or sea, a VWP traveler must arrive on a carrier that signed an agreement (signatory carrier) with the Service guaranteeing that it will transport its VWP passengers deemed inadmissible or deportable out of the United States at no expense to the United States government. See 8 CFR part 217. The VWP has been expanded and made permanent. This rule implements one of the steps to making the VWP system permanent.

The Visa Waiver Permanent Program Act (VWPPA), Public Law 106-396, 114 Stat. 1637 (Oct. 30, 2000), converted the Vias Waiver Pilot Program which was first launched in 1988 into a permanent program with several modifications. Congress modified the pilot program in order to safeguard the United States' law enforcement and security interests and to reduce the ability of inadmissible aliens to enter the United States under the program. See H.R. Rep. No. 106-564, at 7 (2000); see also H.R. Rep. No. 106-1048, p. unavail. (2001). Among other modifications, the VWPPA required the Attorney General to develop and implement, on or before October 1, 2001, at automated entry and exit control system to collect the arrival and departure record for each VWP passenger admitted at a U.S. air or sea port-of-entry (POE). The automated control system was to be based, to the maximum extent practicable, on passenger data collected and electronically transmitted by each carrier that has an agreement with the Service to transport aliens to the United States. The Service has worked with and informed the Air Transport Association (ATA), International Air Transport Association (IATA), International Council of Cruise Lines (ICCL), and other interested stakeholders of the development of the electronic arrival passenger data transmittal system. Currently, over 140 carriers submit electronic arrival passenger information. Of those carriers who do not currently have this system in place, most are fully aware of both the arrival and departure requirements of the system and the statutory deadline being implemented in this rule. The departure requirements are the same as the current APIS arrival information.

Upon publication of this rule, travelers will not be admitted to the United States under the VWP unless they arrive on carriers that are electronically transmitting to the automated entry and exit control system, VWP passenger data that is sufficient to carry out the purpose of section 217(h) of the Act including the calculation of the percentage of nationals from each program country who received a waiver after arriving at a U.S. air or sea POE and for whom no record of departure exists.

Controlling our borders requires collecting information regarding the movement of aliens in, through, and out of the United States. Such information allows the U.S. Government to make informed policy and management decisions, to identify and take action against those who violate the law, to locate individual aliens of interest to law enforcement entities, to track the immigration status of individual aliens so that only those eligible receive immigration benefits, and to keep out terrorists and other malafides. To meet these objectives Congress has mandated that the Service create an electronic Entry-Exit System. Developing an effective entry and exit control system to monitor VWP admissions and departures is a significant step in building this system. Additionally, advance manifests provide the Service with an opportunity to more thoroughly analyze information regarding persons from countries participating in the Visa Waiver program, who are seeking to enter into or depart from the United States upon arrival under the VWP and to identify individuals who may be inadmissible to the United States or otherwise of interest to the Service or another law enforcement agency. Submission of early advance passenger information also facilitates the ability of the Service to notify other law enforcement authorities that an arriving passenger on board may present a potential safety or security risk. Furthermore, the development of an automated entry and exit control system will allow the Service to fulfill the reporting requirements mandated by sectin 217(h)(1)(C) of the Act.

Carriers must electronically transmit passenger arrival data in accordance with this regulation for every applicant for admission under the VWP that the carrier transports by air or sea to a U.S. port-of-entry on or after the date of publication of this rule. Carriers must electronically transmit passenger departure data in accordance with this regulation for every passenger who was admitted to the United States under the VWP that the carrier transports by air or sea from the United States to a foreign port or place on or after the date of publication of this rule. Carriers are only required to transmit departure passenger information for those departing VWP passengers who were admitted under the VWP after arriving at a port-of-entry via sea or air.

This rule provides final implementation for commercial carriers to submit the required VWP passenger arrival data to the Service electronically no later than 15 minutes after the flight or vessel has departed from the last foreign port or place. This is the current transmission requirement for air carriers submitting electronic arrival information under the APIS program and this requirement will also conform to the U.S. Customs Service's rule published at 66 FR 67482 (Dec. 31, 2001). This will allow the Service to check the requested information against appropriate law enforcement and security databases prior to the passenger's arrival. Carriers transporting passengers who were admitted uner the VWP to points outside of the United States must electronically submit the required pasenger departure information to the Service no later than 15 minutes before the flight or vessel departs from the United States. If additional passengers board after the original manifest has been submitted, or if passengers exit after boarding but prior to departure, carriers will also be required to submit amended or updated passenger manifest information electronically to the Service no later than 15 minutes after the flight or vessel has departed from the United States.

This regulation specifically provides that the following information must be electronically transmitted for each passenger seeking admission under the VWP or seeking to depart after having been admitted under the VWP:

Passenger information;

Country of document issuance;

Document type ( e.g., P=Passport, V=Visa, A=Alien registration card);

Flight or vessel information (Advance Passenger Information (API) header message)

Airline International Air Transport Association (IATA) carried code or vessel name;

Airline flight number, or tail number for private or Corporate aircraft;

Date and time of scheduled flight or vessel arrival into the United States;

Date and time of scheduled flight or vessel departure from the United States;

Port of arrival;

Port of departure;

Contact name and number; and

Traveler status ( e.g., P=Passenger, C=Crewmember).

For each arriving and departing VWP passenger, carriers will submit electronically only data elements that most carriers are already transmitting electronically under the Advanced Passenger Information System (APIS) Program administered jointly by the Service and the United States Customs Service and/or pursuant to section 115 of the Aviation and Transportation Security Act, Public Law 107-71. Accordingly carriers that electronically transmit complete and accurate passenger information in accordance with either the memorandum of understanding that governs the APIS program or section 115 of the Aviation Security Act will be in compliance with the passenger arrival information requirements of this regulation. In this light, it must be noted that effectively the only new requirement being implemented on current VWP carriers by promulgating this rule is that of submitting the prescribed data elements electronically prior to department as well as arrival.

The required data for each VWP passenger must be transmitted to the Service via the U.S. Customs Data Center, U.S. Customs Service Headquarters, by means of an electronic data interchange system that is approved by the U.S. Customs Service in conjunction with the Service. Carriers that are not currently transmitting data via the U.S. Customs Data Center must contact the U.S. Customs Data Center, U.S. Customs Service Headquarters for technical guidance. All of the APIS data is currently transmitted to a centralized data base known as the Interagency Border Inspection System (IBIS), which is jointly operated and accessible by the Service and the U.S. Customs Service. IBIS allows all of the carriers to submit the electronic arrival and passenger information to one centralized location that meets both the service and the USCS's requirements.

There are no fines provided for by section 217 of the Act; however, in cases where the carrier inexcusably fails to transmit an electronic record in accordance with this rule and an alien arrives without the necessary documentation needed for admission in the absence of the VWP, the Service may impose fines under section 273 of the Act. Prior to the Service issuing any fines, the Service will evaluate carriers on a Good Faith Effort, which will be based upon the following criteria: (1) The carrier notifies the Service of any technical or other issues in submitting the departure information; (2) the carrier has a backorder of the purchase of additional equipment, such as document readers; (3) the carrier is using an alternative temporary method such as, the U.S. Customs Service e-main account, in lieu of the carrier's reservation system; (4) the carrier is utilizing a third party vendor as a temporary solution in lieu of the carrier's reservation system to transmit departure manifests; or (5) the totality of circumstances of each carrier to comply with this regulation. Additionally, the Service may seek to cancel the carrier's VWP contract for continued infractions that could include untimely as well as incomplete data. Finally, it should be noted that the Service may refuse admission under the VWP to aliens for whom the carrier has not electronically transmitted the required data elements.

Yes. The obligation of carriers to submit information on VWP passengers in support of the automated entry exit control system mandated by section 217(h) of the Act is separate from a carrier's obligation to submit arrival and departure manifests for all persons transported on commercial aircraft or vessels pursuant to section 231 of the Act. However, section 402 of the Enhanced Border Security Act of 2002 recently amended section 231 of the Act by mandating, among other things, that the manifest information required under section 231 must be transmitted electronically not later than January 1, 2003. The Service plans to publish a regulation implementing the manifest provisions of Public Law 107-173, including the electronic transmission requirement, shortly. It is the goal of the Service to develop a single procedure for the electronic transmission of passenger and crew arrival and departure information that will satisfy the requirements of both sections 217 and 231 of the Act.

Implementation of this rule as an interim rule with provision for post-promulgation public comments is based upon the “good cause” exception found at 5 U.S.C. 553(b)(B). In accordance with section 217(h)(1)(B)(1) of the act, effective on the date of publication of this rule, no waiver may be provided under section 217 of the Act to an alien arriving by air or sea on a carrier unless the carrier is electronically transmitting passenger data determined by the Attorney General to be sufficient to permit the Attorney General to carry out his obligations under 217(h) of the Act. In addition, this regulation will provide the Service with valuable advanced information regarding persons who are arriving and departing the United States from air and sea ports-of-entry. Additionally, this information will allow the Service to better able to identify and monitor individuals who violate their immigration status. The electronic arrival and departure manifest will also enable the Service to determine overstay rates by Visa Waiver Countries. For these reasons, promulgation of this rule as a proposed rule would be contrary to the public interest.

Because this regulation is not subject to the requirements of the notice and comment provisions of the Administrative Procedure Act for good cause noted above it is likewise not subject to the provisions of the Regulatory Flexibility Act. Should it become necessary, a regulatory flexibility analysis will be provided in connection with the promulgation of a final rule.

This rule is considered by the Department of Justice, Immigration and Naturalization Service, to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, this rule has been submitted to the Office of Management and Budget for review.

All of the air carriers currently transmnit arrival information electronically, however, it is unknown what the cost is to the airlines to reprogram their systems for departure manifests. However, a majority of carriers already collect passenger information during the passenger's arrival check-in process and this information is maintained in the reservation system. In addition, the ATA and IATA have not been able to provide cost estimates to the Service but expect most of the costs to be associated with reprogramming the carrier's existing reservation system to meet the departure requirement. Other costs may also include the purchase of additional document readers to scan travel documents. The price range of a document reader is approximately $900.00 to $2,000.00.

There will be additional staff hours if the departure manifest requirements are entered manually, however, most airlines already have automated systems, especially for the arrival APIS process. The U.S. Customs system also provides an e-mail account for carriers with no systems and is developing a Web account.

For carriers without reservation systems or APIS access, the USCS has developed an e-m,ail account to transmit and is also in the process of developing web APIS to allow carriers to transmit the electronic arrival and departure manifests. This option provides minimum costs to carriers who wish to utilize the e-mail or Web access. Third party vendors are also available to submit an electronic arrival or department on the carrier's behalf.

This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This rule will not result in the expenditure by state, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions are deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

This interim rule requires that carriers collect and electronically transmit certain arrival and departure information concerning Visa Waiver Program passengers to the Service. This requirement is considered an information collection under the Paperwork Reduction Act. Accordingly, the Service has submitted an information collection request to the Office of Management and Budget (OMB) for emergency review and clearance in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

All comments and suggestions, or questions regarding additional information, should be directed to the Immigration and Naturalization Service, Regulations and Forms Services Division, 425 I Street NW., Room 4034, Washington, DC 20536; Attention: Richard A Sloan, Direction, (202) 514-3291.

We request written comments and suggestions from the public and affected agencies concerning the proposed collection of information. Any comments on the information collection must be submitted on or before December 10, 2002. Your comments should address one or more of the following four points:

(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the collection of the information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

Overview of this information collection:

(1) Type of information collection: New.

(2) Title of Form/Collection: Visa Waiver Program Passenger Arrival and Departure Data.

(3) Agency form number, if any, and the applicable component of the Department of Justice sponsoring the collection: No form number (File number OMB-32), Immigration and Naturalization Service.

(4) Affected public who will be asked or required to respond, as well as a brief abstract: Business or Individuals. Section 217(h) of the Immigration and Nationality Act (Pub. L. 106-396), requires that certain passenger data elements must be collected and electronically transmitted to the Immigration and Naturalization Service by carriers seeking to transport VWP passengers into and out of the United States on or after October 1, 2002. The information collection is necessary to ensure that the Service receives accurate passenger arrival and departure information in a timely manner.

(5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond: 600 respondents at 10 minutes multiplied by 365 days.

(6) An estimate of the total of public burden (in hours) associated with the collection: Approximately 36,500 burden hours. This collection is OMB No. 1115-0255.

If additional information is required contact Richard A. Sloan, Director, (202) 514-3291.

Accordingly, part 217 of chapter I of title 8 of the Code of Federal Regulations is amended as follows:

The FAA has determined that notice and opportunity for prior public comment are unnecessary in accordance with 14 CFR 11.38, because the FAA has provided previous opportunities to comment on substantially identical special conditions, and has fully considered and addressed all the substantive comments received. Based on a review of the comment history and the comment resolution, the FAA is satisfied that new comments are unlikely. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance.

Although this action is in the form of final special conditions, and for the reasons stated above, is not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to participate in this rulemaking by submitting comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions in light of the comments we receive.

If you want the FAA to acknowledge receipt of your comments on this proposal, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.

On September 17, 2001, Flight Structures Inc., 4407 172 Street NE., Arlington, Washington, 98223, applied for a supplemental type certificate (STC) for installation of a Door 1 overhead flightcrew rest (OFCR) compartment in Boeing Model 777-200 series airplanes. The certification of the Alitalia Model 777-200 overhead crew rest is currently scheduled for October 9, 2002. The Boeing Model 777-200 series airplanes are large twin engine airplanes with various passenger capacities and ranges depending upon airplane configuration.

The OFCR compartment, adjacent to Door 1, is located in the overhead above the main passenger cabin and will include a maximum of two private berths, two seats, and a lavatory. Occupancy of the OFCR compartment will be limited to a maximum of four occupants.

The OFCR will be accessed from the main deck by stairs. In addition, an emergency hatch that opens directly into the main passenger cabin area will be provided for the compartment. A smoke detection system, an oxygen system, and occupant amenities will also be provided. This compartment will only be occupied in flight, not during taxi, takeoff, or landing.

Compliance with these proposed special conditions does not relieve the applicant from the existing airplane certification basis requirements. One particular area of concern is that the OFCR installation creates a smaller compartment volume within the overhead area of the airplane. The applicant must comply with the requirements of §§ 25.365(e), (f), and (g), for the overhead area compartment, as well as any other airplane compartments whose decompression characteristics are affected by the installation of a crew rest compartment. Compliance with § 25.831 must be demonstrated for all phases of flight where occupants will be present.

The FAA considers OFCR compartment smoke or fire detection and fire suppression systems (including airflow management features that prevent hazardous quantities of smoke or fire extinguishing agent from entering any other compartment occupied by crewmembers or passengers) complex with respect to paragraph 6d of Advisory Circular (AC) 25.1309-1A, “System Design and Analysis.” In addition, the FAA considers failure of the crew rest compartment fire protection system ( i.e. , smoke or fire detection and fire suppression systems) in conjunction with a crew rest fire to be a catastrophic event. Based on the “Depth of Analysis Flowchart” shown in Figure 2 of AC 25.1309-1A, the depth of analysis should include both qualitative and quantitative assessments (reference paragraphs 8d, 9, and 10 of AC 25.1309-1A). In addition, it should be noted that flammable fluids, explosives, or other dangerous cargo are prohibited from being carried in the crew rest area.

The requirements to enable crewmember(s) quick entry to the crew rest compartment and to locate a fire source inherently places limits on the amount of baggage that may be carried and the size of the crew rest area. The FAA notes that the crew rest area is limited to stowage of crew personal luggage and it is not intended to be used for the stowage of cargo or passenger baggage. The design of such a system to include cargo or passenger baggage would require additional requirements to ensure safe operation.

The addition of galley equipment or a kitchenette incorporating a cook top or other heat source, or a stowage compartment greater than or equal to 25 ft 3 , into the crew rest compartment may require further special conditions to be considered.

Amendment 25-38 modified the requirements of § 25.1439(a) by adding, “In addition, protective breathing equipment must be installed in each isolated separate compartment in the airplane, including upper and lower lobe galleys, in which crewmember occupancy is permitted during flight for the maximum number of crewmembers expected to be in the area during any operation.” The requirements of § 25.1439(a) apply to the OFCR compartment, which is an isolated separate compartment. However, the PBE requirements for isolated separate compartments of § 25.1439(a) are not appropriate because the OFCR compartment is novel and unusual in terms of the number of occupants. In 1976 when amendment 25-38 was adopted, small galleys were the only isolated compartments that had been certificated. A maximum of two crewmembers were expected to occupy those galleys. Special Condition No. 9 addresses crew rest compartments which can accommodate up to four crewmembers. This large number of occupants in an isolated compartment was not envisioned at the time amendment 25-38 was adopted. It is not appropriate for all occupants to don PBE in the event of a fire because the first action should be to leave the confined space unless the occupant is fighting the fire. Taking the time to don the PBE would prolong the time for the emergency evacuation of the occupants and possibly interfere with efforts to extinguish the fire.

These special conditions outline requirements for OFCR compartment design approvals ( i.e. type design changes and supplemental type certificates) administered by the FAA's Aircraft Certification Service. Prior to operational use of an OFCR compartment, the FAA's Flight Standards Service must evaluate and approve the “basic suitability” of the OFCR compartment for crew occupation. Additionally, if an operator wishes to utilize a flightcrew rest area as “sleeping quarters,” the crew rest area must undergo an additional evaluation and approval (Reference §§ 121.485(a), 121.523(b) and 135.269(b)(5)). Compliance with these special conditions does not ensure that the requirements of part 121 or part 135 have been demonstrated.

In order to obtain an operational evaluation, the type design holder must contact the Aircraft Evaluation Group (AEG) in the Flight Standards Service and request a “basic suitability” evaluation or a “sleeping quarters” evaluation of their crew rest. The results of these evaluations must be documented in a 777 Flight Standardization Board (FSB) Report Appendix. Individual operators may then reference these standardized evaluations in discussions with their FAA Principal Operating Inspector (POI) as the basis for an operational approval, in lieu of an on-site operational evaluation.

Any changes to the approved OFCR compartment configuration that effect crewmember emergency egress or any other procedures affecting the safety of the occupying crewmembers and/or related training shall require a re-evaluation and approval. The applicant for a crew rest design change that affects egress, safety procedures, or training is responsible for notifying the FAA's AEG that a new crew rest evaluation is required.

Procedures must be developed to assure that a crewmember entering the OFCR through the vestibule to fight a fire will examine the vestibule and the lavatory areas for the source of the fire prior to entering the remaining areas of the crew rest compartment. These procedures are intended to assure that the source of the fire is not between the crewmember and the primary exit.

Under the provisions of § 21.101, Amendment 21-69, effective September 16, 1991, Flight Structures Inc., must show that the Boeing Model 777-200, as changed, continues to meet the applicable provisions of the regulations incorporated by reference in Type Certificate Data Sheet No. T00001SE or the applicable regulations in effect on the date of application for the change. Subsequent changes have been made to § 21.101 as part of Amendment 21-77, but those changes do not become effective until June 10, 2003. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in Type Certificate No. T00001SE for the Boeing Model 777-200 series airplanes include 14 CFR part 25, as amended by Amendments 25-1 through 25-82. The U.S. type certification bases for the Boeing Model 777-200 series airplanes is established in accordance with 14 CFR 21.17 and 21.29 and the type certification application date. The type certification basis is listed in Type Certificate Data Sheet No. T00001SE.

If the Administrator finds that the applicable airworthiness regulations ( i.e. , 14 CFR part 25) do not contain adequate or appropriate safety standards for the Boeing Model 777-200 series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, Boeing Model 777-200 series airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

Special conditions, as defined in § 11.19, are issued in accordance with § 11.38 and become part of the type certification basis in accordance with § 21.101(b)(2), Amendment 21-69, effective September 16, 1991.

Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, the special conditions would also apply to the other model under the provisions of § 21.101(a)(1), Amendment 21-69, effective September 16, 1991.

While the installation of a crew rest compartment is not a new concept for large transport category airplanes, each compartment design has unique features by virtue of its design, location, and use on the airplane. Previously, crew rest compartments have been evaluated that are installed within the main passenger compartment area of the Boeing Model 777-200 and Model 777-300 series airplanes and the overhead area of the passenger compartment of the 777-200. Other crew rest compartments have been installed below the passenger cabin area, adjacent to the cargo compartment. Similar overhead crew rest compartments have also been installed on the Boeing Model 747 airplane. The interfaces of the modification are evaluated within the interior and assessed in accordance with the certification basis of the airplane. However, part 25 does not provide all the requirements for crew rest compartments within the overhead area of the passenger compartment. Further, these special conditions do not negate the need to address other applicable part 25 regulations.

Due to the novel or unusual features associated with the installation of this crew rest compartment, special conditions are considered necessary to provide a level of safety equal to that established by the airworthiness regulations incorporated by reference in the type certificate.

During a previous publication of the substantially identical special conditions a comment was received after the comment period had closed. The commenter thought requiring placards prohibiting storage of “hazardous quantities of flammable fluids” was unnecessary and a duplication of International Air Transport Association (IATA) Dangerous Goods Regulations, specially, “Provisions for Dangerous Goods Carried by Passengers or Crew.” The FAA concurs with the commenter that the placard requirement is similar to the IATA requirement, however based on several factors the FAA finds that the duplication is warranted and consistent with maintaining an equivalent level of safety. While flammable fluid placards are not required in the passenger cabin, it is also an occupied area with a high degree of monitoring by passengers and crew. By contrast the crew rest may go unoccupied for long periods of time. The fire protection methods employed for this type of remote area are predicated on minimization of flammable materials.

As discussed above, these special conditions are applicable to the Model 777-200 series airplanes. Should Flight Structures Inc., apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate Data Sheet No. T00001SE to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well under the provisions of § 21.101(a)(1) Amendment 21-69, effective September 16, 1991.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Boeing Model 777-200 series airplanes, modified by Flight Structures Inc., with an overhead flightcrew rest (OFCR) compartment.

1. Occupancy of the OFCR compartment is limited to the total number of installed bunks and seats in each compartment. There must be an approved seat or berth able to withstand the maximum flight loads when occupied for each occupant permitted in the OFCR compartment. The maximum occupancy is four in the OFCR compartment.

(a) There must be appropriate placards, inside and outside each entrance to the OFCR compartment to indicate:

(1) The maximum number of occupants allowed,

(2) That occupancy is restricted to crewmembers that are trained in the evacuation procedures for the OFCR compartment,

(3) That occupancy is prohibited during taxi, take-off and landing,

(4) That smoking is prohibited in the OFCR compartment, and

(5) That hazardous quantities of flammable fluids, explosives, or other dangerous cargo are prohibited from the OFCR compartment.

(b) There must be at least one ashtray on the inside and outside of any entrance to the OFCR compartment.

(c) There must be a means to prevent passengers from entering the OFCR compartment in the event of an emergency or when no flight attendant is present.

(d) There must be a means for any door installed between the OFCR compartment and passenger cabin to be capable of being quickly opened from inside the compartment, even when crowding occurs at each side of the door.

(e) For all doors installed, there must be a means to preclude anyone from being trapped inside the OFCR compartment. If a locking mechanism is installed, it must be capable of being unlocked from the outside without the aid of special tools. The lock must not prevent opening from the inside of the compartment at any time.

2. There must be at least two emergency evacuation routes, which could be used by each occupant of the OFCR compartment to rapidly evacuate to the main cabin and be able to be closed from the main passenger cabin after evacuation. In addition—

(a) The routes must be located with sufficient separation within the OFCR compartment, and between the evacuation routes, to minimize the possibility of an event rendering both routes inoperative.

(b) The routes must be designed to minimize the possibility of blockage, which might result from fire, mechanical or structural failure, or persons standing below or against the escape route. One of the two evacuation routes should not be located where, during times in which occupancy is allowed, normal movement by passengers occurs ( i.e. main aisle, cross aisle or galley complex) that would impede egress of the OFCR compartment. If an evacuation route utilizes an area where normal movement of passengers occurs, it must be demonstrated that passengers would not impede egress to the main deck. If there is low headroom at or near the evacuation route, provisions must be made to prevent or to protect occupants (of the OFCR area) from head injury. The use of evacuation routes must not be dependent on any powered device. If the evacuation path is over an area where there are passenger seats, a maximum of one row of passengers may be displaced from their seats temporarily during the evacuation process of an incapacitated person(s). If the evacuation procedure involves the evacuee stepping on seats, the seats must not be damaged to the extent that they would not be acceptable for occupancy during an emergency landing.

(c) Emergency evacuation procedures and the emergency evacuation of incapacitated occupant procedures must be established and transmitted to the operator for incorporation into their training programs and appropriate operational manuals. If the evacuation path is over an area where there are passenger seats, a maximum of one row of passengers may be displaced from their seats temporarily during the evacuation process.

(d) There must be a limitation in the Airplane Flight Manual or other suitable means requiring that crewmembers be trained in the use of evacuation routes.

3. There must be a means for the evacuation of an incapacitated person (representative of a ninety-fifth percentile male) from the OFCR compartment to the passenger cabin floor.

(a) The evacuation must be demonstrated for all evacuation routes. A flight crewmember or other crewmember (a total of one assistant within the OFCR area) may provide assistance in the evacuation. Additional assistance may be provided by up to three persons in the main passenger compartment. These additional assistants must be standing on the floor while providing assistance. For evacuation routes having stairways, the additional assistants may ascend up to one half the elevation change from the main deck to the OFCR compartment, or to the first landing, whichever is lower.

(b) Procedures for the evacuation of an incapacitated person from the OFCR compartment must be established.

4. The following signs and placards must be provided in the OFCR compartment:

(a) At least one exit sign, located near each exit, meeting the requirements of § 25.812(b)(1)(i), except that a sign of reduced background area with no less than 5.3 square inches (excluding the letters) may be utilized, provided that it is installed such that the material surrounding the exit sign is light in color ( e.g. white, cream, light beige). If the material surrounding the exit sign is not light in color, a sign with a minimum of a one-inch wide background border around the letters would also be acceptable.

(b) An appropriate placard located near each exit defining the location and the operating instructions for each evacuation route.

(c) Placards must be readable from a distance of 30 inches under emergency lighting conditions.

(d) The exit handles and evacuation path operating instruction placards must be illuminated to at least 160 microlamberts under emergency lighting conditions.

5. There must be a means in the event of failure of the aircraft's main power system, or of the normal OFCR compartment lighting system, for emergency illumination to be automatically provided for the crew rest compartment.

(a) This emergency illumination must be independent of the main lighting system.

(b) The sources of general cabin illumination may be common to both the emergency and the main lighting systems if the power supply to the emergency lighting system is independent of the power supply to the main lighting system.

(c) The illumination level must be sufficient for the occupants of the OFCR compartment to locate and transfer to the main passenger cabin floor by means of each evacuation route.

6. There must be means for two-way voice communications between crewmembers on the flightdeck and occupants of the OFCR compartment. There must also be two-way communications between the occupants of the OFCR compartment and each flight attendant station required to have a public address system microphone per § 25.1423(g) in the passenger cabin.

7. There must be a means for manual activation of an aural emergency alarm system, audible during normal and emergency conditions, to enable crewmembers on the flightdeck and at each pair of required floor level emergency exits to alert occupants of the OFCR compartment of an emergency situation. Use of a public address or crew interphone system would be acceptable, providing an adequate means of differentiating between normal and emergency communications is incorporated. The system must be powered in flight, after the shutdown or failure of all engines and auxiliary power units (APU), or the disconnection or failure of all power sources dependent on their continued operation ( i.e. engine and APU), for a period of at least ten minutes.

8. There must be a means, readily detectable by seated or standing occupants of the OFCR compartment, which indicates when seat belts should be fastened. In the event there are no seats, at least one means must be provided to cover anticipated turbulence ( e.g. sufficient handholds). Seat belt type restraints must be provided for berths and must be compatible for the sleeping attitude during cruise conditions. There must be a placard on each berth requiring that seat belts must be fastened when occupied. If compliance with any of the other requirements of these special conditions is predicated on specific head location, there must be a placard identifying the head position.

9. In lieu of the requirements specified in § 25.1439(a) that pertain to isolated compartments and to provide a level of safety equivalent to that which is provided occupants of a small isolated galley, the following equipment must be provided in the OFCR compartment:

(a) At least one approved hand-held fire extinguisher appropriate for the kinds of fires likely to occur;

(b) Two protective breathing equipment (PBE) devices, approved to Technical Standard Order (TSO)-C116 or equivalent, suitable for fire fighting or one PBE for each hand-held fire extinguisher, whichever is greater; and

(c) One flashlight.

10. A smoke or fire detection system (or systems) must be provided that monitors each area within the OFCR compartment including those areas partitioned by curtains. Flight tests must be conducted to show compliance with this requirement. Each system (or systems) must provide:

(a) A visual indication to the flightdeck within one minute after the start of a fire;

(b) An aural warning in the OFCR compartment; and

(c) A warning in the main passenger cabin. This warning must be readily detectable by a flight attendant, taking into consideration the positioning of flight attendants throughout the main passenger compartment during various phases of flight.

11. The OFCR compartment must be designed such that fires within the compartment can be controlled without a crewmember having to enter the compartment, or the design of the access provisions must allow crewmembers equipped for fire fighting to have unrestricted access to the compartment. The time for a crewmember on the main deck to react to the fire alarm, to don the fire fighting equipment, and to gain access must not exceed the time for the compartment to become smoke-filled, making it difficult to locate the fire source.

12. There must be a means provided to exclude hazardous quantities of smoke or extinguishing agent originating in the OFCR compartment from entering any other compartment occupied by crewmembers or passengers. This means must include the time periods during the evacuation of the crew rest compartment and, if applicable, when accessing the crew rest compartment to manually fight a fire. Smoke entering any other compartment occupied by crewmembers or passengers after opening the OFCR access door must dissipate within five minutes after closing the access to the OFCR compartment. Flight tests must be conducted to show compliance with this requirement.

If a built-in fire extinguishing system is used in lieu of manual fire fighting, then the fire extinguishing system must be designed so that no hazardous quantities of extinguishing agent will enter other compartments occupied by passengers or crew; the system must have adequate capacity to suppress any fire occurring in the OFCR compartment, considering the fire threat, volume of the compartment and the ventilation rate.

13. There must be a supplemental oxygen system equivalent to that provided for main deck passengers for each seat and berth in the OFCR compartment. The system must provide an aural and visual warning to warn the occupants of the crew rest compartment to don oxygen masks in the event of decompression. The warning must activate before the cabin pressure altitude exceeds 15,000 feet. The aural warning must sound continuously until a reset push button in the OFCR compartment is depressed.

14. The following requirements apply to OFCR compartments that are divided into several sections by the installation of curtains or partitions:

(a) To compensate for sleeping occupants, there must be an aural alert that can be heard in each section of the OFCR compartment that accompanies automatic presentation of supplemental oxygen masks. A minimum of two supplemental oxygen masks are required in each section whether or not seats or berths are installed in each section. There must also be a means by which the oxygen masks can be manually deployed from the flightdeck.

(b) A placard is required adjacent to each curtain that visually divides or separates, for privacy purposes, the OFCR compartment into small sections. The placard must require that the curtain(s) remain open when the private section it creates is unoccupied. The vestibule section adjacent to the stairway is not considered a private area and, therefore, does not require a placard.

(c) For each OFCR section created by the installation of a curtain, the following requirements of these special conditions must be met with the curtain open or closed:

(1) No smoking placard (Special Condition No. 1),

(2) Emergency illumination (Special Condition No. 5),

(3) Emergency alarm system (Special Condition No. 7),

(4) Seat belt fasten signal or return to seat signal as applicable (Special Condition No. 8), and

(5) The smoke or fire detection system (Special Condition No. 10).

(d) Overhead crew rest compartments visually divided to the extent that evacuation could be affected must have exit signs that direct occupants to the primary stairway exit. The exit signs must be provided in each separate section of the OFCR compartment, and must meet the requirements of § 25.812(b)(1)(i).

(e) Sections within an OFCR compartment that are created by the installation of a rigid partition with a door physically separating the sections, the following requirements of these special conditions must be met with the door open or closed:

(1) There must be a secondary evacuation route from each section to the main deck, or alternatively, it must be shown that any door between the sections has been designed to preclude anyone from being trapped inside the compartment. Removal of an incapacitated occupant within this area must be considered.

(2) Any door between the sections must be shown to be openable when crowded against, even when crowding occurs at each side of the door.

(3) There may be no more than one door between any seat or berth and the primary stairway exit.

(4) There must be exit signs in each section meeting the requirements of § 25.812(b)(1)(i) that direct occupants to the primary stairway exit. An exit sign with reduced background area as described in Special Condition No. 4(a) may be used to meet this requirement.

(f) For each smaller section within the main OFCR compartment created by the installation of a partition with a door, the following requirements of these special conditions must be met with the door open or closed:

(1) No smoking placards (Special Condition No. 1),

(2) Emergency illumination (Special Condition No. 5),

(3) Two-way voice communication (Special Condition No. 6),

(4) Emergency alarm system (Special Condition No. 7),

(5) Seat belt fasten signal or return to seat signal as applicable (Special Condition No. 8),

(6) Emergency fire fighting and protective equipment (Special Condition No. 9), and

(7) Smoke or fire detection system (Special Condition No. 10).

15. The requirements of two-way voice communication with the flightdeck and provisions for emergency firefighting and protective equipment are not applicable to lavatories or other small areas that are not intended to be occupied for extended periods of time.

16. Where a waste disposal receptacle is fitted, it must be equipped with an automatic fire extinguisher that meets the performance requirements of § 25.854(b).

17. Materials (including finishes or decorative surfaces applied to the materials) must comply with the flammability requirements of § 25.853(a) as amended by Amendment 25-83. Mattresses must comply with the flammability requirements of § 25.853(c), as amended by Amendment 25-83.

On June 21, 2002, we (MSHA) published, in the Federal Register (67 FR 42314), our final rule on Hazard Communication for the mining industry. This document contained errors and omissions that must be corrected; therefore, the document is corrected as follows:

1. On page 42335, third column, second paragraph, ninth line, correct “provides valuable,” to read “provides valuable guidance,”.

2. On page 42343, first column, first paragraph after the heading 3. Section 47.2 Label Contents, tenth line, correct “The label must also contain” to read “For customers, the label must also contain”.

3. On page 42343, third column, first paragraph, seventeenth line, correct “the name, address, and telephone number of the operator or other responsible party be included in the contents of the label” to read “the name and address of the operator or another responsible party be included in the contents of the product's label for customers.”.

4. On page 42345, second column, sixth paragraph, eighth line, correct “Although you do not have to label it” to read “Although you do not have to label it while on mine property”.

5. On page 42365, first column, second paragraph, fifteenth line, correct “§ 47.32” to read “§ 47.42”.

6. On page 42373, second column, first paragraph, third line, correct “4015 Wilson Boulevard, Arlington, VA 22203” to read “1100 Wilson Boulevard, Arlington, VA 22209”.

7. On page 42375, first column, second paragraph, fourteenth line, correct “to about $370” to read “to about $390”.

8. On page 42379, third column, second paragraph, eighth line, correct “At concentrations between 2-10%,” to read “At concentrations between 2-10%,”.

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking [CGD07-02-091], indicate the specific section of this document to which each comment applies, and give the reason for each comment. The Coast Guard is interested in comments that, among other issues, detail specific economic impact to stakeholders on the Miami River. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this rule in view of them.

On August 6, 2002 we published a notice of proposed rulemaking (NPRM) entitled “Drawbridge Operation Regulations; Miami River, Miami-Dade County, Florida” in the Federal Register (67 FR 50842). We received twenty-three letters commenting on the proposed rule. A public meeting was requested; none was held for reasons discussed later in this preamble.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective in less than 30 days after publication in the Federal Register . The Coast Guard is making this rule effective on October 7, 2002 because the contractor will solicit input weekly from the tugboat companies responsible for moving large commercial vessels on the Miami River to develop a coordinated construction schedule to minimize disruption to the large vessel and construction schedules of the Miami River and Second Avenue Bridge, respectively. Allowing the rule to go into effect in less than 30 days will allow construction to begin closer to the scheduled start, thus expediting the completion of the Second Avenue Bridge and elimination of obstructions to navigation due to its construction.

On August 6, 2002 we published a Notice of Proposed Rulemaking (NPRM) outlining a request from the Florida Department of Transportation (FDOT) (the bridge owner) and Gilbert Southern Corp. (GSC) (the bridge contractor) to keep a single-leaf of the Second Avenue Bridge in the closed position for periods of time not to exceed eighteen hours daily to facilitate installation of the two bridge leaves.

At an August 21, 2002 meeting, the Coast Guard briefed the bridge owner and contractor of the negative tone of the comments to the proposed rule the Coast Guard had in the docket at that point. Based on this meeting, the owner and contractor met with key stakeholders and requested the Coast Guard change the window originally requested, allowing a single leaf opening of the Second Avenue Bridge for not more than nine hours per day, three hours after one of the two daily high tides. This temporary rule allows this each day except Wednesdays, because that is the busiest day for shipping on the Miami River. The temporary rule better provides for the reasonable needs of navigation while still allowing installation of the two leaves, and thus completion of the bridge, to progress. Additionally, because the comments indicated that large ship movements on the Miami River can only occur on the high tide, the temporary rule reduces the negative economic impact to commercial users of the Miami River by allowing use of one, and part of the second, daily high tide on the River to facilitate large vessel movement. This temporary rule is an effort to meet the reasonable needs of navigation and provide for the construction of the Second Avenue Bridge, which will ultimately improve the navigability of the Miami River.

The Coast Guard received twenty-one comments on the proposed rule; four were in support of it, while seventeen were opposed to it.

Comments in support of the proposed rule were by submitted FDOT, the City of Miami City Manager's Office, the Miami-Dade County Public Works Department, and Miami-Dade County Manager's Office. The comment submitted by FDOT listed eight coordination meetings with various Miami River interests, along with the general attendees and discussion topics at the meetings to show the level of attempted coordination between FDOT and various Miami River stakeholders. The Coast Guard acknowledges these comments, but for reasons stated in the “Background and Purpose” section, has modified the original proposed rule and has implemented this temporary rule.

The proposed rule also had a provision temporarily eliminating the operating regulations that allowed Miami River bridges to not open during morning and afternoon vehicle traffic rush hours. Four comments were also in favor of this aspect of the proposed rule and requested it be made permanent. Thus, the Coast Guard kept this provision of the temporary rule. However, the permanency of this elimination is beyond the scope of this rulemaking.

Seventeen comments were opposed to the provision of the proposed rule that would allow the bridge owner and contractor to keep a single-span of the Second Avenue Bridge in the horizontal (down) position daily from 4 a.m. to 10 p.m. The Coast Guard changed this provision in this temporary rule as detailed throughout this document.

Eleven comments were in general opposition to allowing a single leaf of the bridge to be in the horizontal (down) position for a maximum of eighteen-hour timeframe. Some comments cited the general negative economic impact that allowing a single leaf of the Second Avenue Bridge to remain in the horizontal (down) position would have on the Miami River cargo industry (two comments) and indirect negative impact on the commenters' businesses because they rely on the larger vessel traffic flow for their businesses (seven comments). One comment asserted that shipping must get “the priority use” of rivers. One comment suggested that the obstruction of the Miami River due to installation of the Second Avenue Bridge leafs be limited to eight hours and any time beyond those eight hours where the Miami River is obstructed be mitigated by a financial subsidy from the bridge contractor to companies negatively impacted. The Coast Guard has no authority to require a subsidy of this type. Thus, it was not incorporated into the temporary rule.

Nine comments cited the negative economic impact that the proposed rule would likely have on the Miami River cargo shipping industry, which uses large vessels to ship goods.

The Coast Guard has considered these comments, and has changed the proposed rule based in part on them, in part on the comments from the bridge owner and contractor requesting to halve the maximum eighteen hour window reflected in the NPRM ( see “Background and Purpose”), and in part on other more detailed comments discussed below regarding the proposed rule. This temporary rule allows the Second Avenue Bridge to have single leaf openings six days a week for a maximum of nine hours per day, starting three hours after one of the two daily high tides. The rule requires both leaves of the Second Avenue Bridge to open on Wednesdays because Wednesdays are the busiest day for shipping on the Miami River. These changes directly address the comments about the economic impacts of the rule and will insure that the reasonable needs of navigation are met.

Two comments commented on the construction method of the Second Avenue Bridge, declaring that construction of the bridge in the horizontal position is unreasonable and that construction of the bridge must be done in the upright position. In June 2001, July 2002, and August 2002 representatives from the Coast Guard Seventh District Bridge Branch met with representatives of the bridge owner and contractor. The bridge owner and contractor explained the construction methodology behind the bridge and that it could not be practically constructed with leaves in the vertical (upright) position due to the sheer size of each bridge leaf and due to safety concerns for bridge construction workers. Miami River vessel traffic would be impacted for an equal amount of time if the bridge leaves were installed in the vertical (up) position as it would in the horizontal (down) position because of the safety hazard over the waterway that would exist while installing the leaves.

Two comments commented on the construction method of the Second Avenue Bridge, declaring that construction of the bridge in the horizontal position is unreasonable and that construction of the bridge must be done in the upright position. In June 2001, July 2002, and August 2002 representatives from the Coast Guard Seventh District Bridge Branch met with representatives of the bridge owner and contractor. The bridge owner and contractor explained the construction methodology behind the bridge and that it could not be practically constructed with leaves in the vertical (upright) position due to the sheer size of each bridge leaf and due to safety concerns for bridge construction workers. The Coast Guard notes that Miami River vessel traffic would be impacted for an equal amount of time if the bridge leaves were installed in the vertical (up) position as it would in the horizontal (down) position because of the safety hazard that would exist over the waterway requiring the limitation of the River's horizontal clearance while installing the leaves. Two commenters requested a public meeting to provide a forum to review the assertion that the Second Avenue Bridge could not be constructed in the vertical (up) position because of the bridge's size and design. Because safety hazards would still exist on the waterway requiring a similar reduction in the horizontal clearance of the Miami River, the Coast Guard sees no new issues arising from a public meeting on this topic, so none was held.

Seven comments were opposed to the proposed rule's six-hour time window that the Second Avenue Bridge be open to all traffic because it was too small of a period to have unimpeded vessel traffic flow on the Miami River. Five comments declared that the proposed rule would “basically shut down the river” to all vessel traffic for the duration the rule would be in effect. Two comments cited the tug bottleneck that the proposed rule would create because the six-hour window would force all larger vessel traffic into that window for transiting the Miami River, and traffic would necessarily be delayed. The Coast Guard considered the impact of the proposed rule on the Miami River vessel traffic, noting that large vessel traffic flow is one way on the River due to the limited available width. Two comments mention that the period described in the proposed rule is the “peak season” on the Miami River, and thus would have “devastating” effects on the commerce that runs on the Miami River. One comment discussed Miami River tidal patterns and that at best there would be one high tide and one low tide during the six-hour window from 10 p.m. and 4 a.m. every six days, and large commercial vessel traffic is restricted to movements corresponding with the high tides. The changes in this temporary rule creates a fifteen-hour window that should reduce the traffic concerns that resulted from the limited six-hour window of unimpeded River navigability contained in the original proposed rule.

One of the comments from a marine terminal on the River asserted that the proposed rule would create an additional $2K to $5K expense per vessel. This terminal had over 100 sailings last year. As discussed in detail below, the Coast Guard has adopted a temporary rule that makes explicit the intent to obstruct the Miami River for not more than nine hours per day, six days per week. This should mitigate the economic impact to this terminal because large vessels will be able to use one high tide daily, and part of the second, for movements on the River. Also, the schedule will be published in advance, and should allow for flexibility in scheduling for parties involved on either side of this issue. The temporary rule should also reduce the bottleneck concern. Additionally, the Coast Guard will continue to accept comments on the temporary rule through the first construction phase, and may change it depending on the comments. Comments detailing specific economic impacts such as the one in this paragraph are particularly helpful in evaluating this rule.

Three comments stated the proposed rule was unfair to the Miami River shipping industry. The comments state that the proposed rule would instill economic woes on the River shipping industry to benefit the bridge contractor, that it would be unfair to allow the bridge contractor and owner to reap benefits from this planned bridge construction despite their poor planning with local River stakeholders, that the marine industry is severely penalized by bridge design and building contracts that are beyond their control, and that the Coast Guard has chosen to sacrifice an important economic engine in favor of the bridge contractor's prospective profit.

One comment alleged bias shown by the Coast Guard in favor of construction of the Second Avenue Bridge over the needs of navigation.

The Coast Guard uses the “reasonable needs of navigation” as the standard when evaluating projects that potentially impact navigation. The bridge owner and contractor requested the proposed rule. The Coast Guard's view was that to better determine what the needs of navigation were, the proposed rule should be released to solicit comments which would provide the Coast Guard with a basis to determine the reasonable needs of navigation. The Coast Guard has considered these comments and, as noted above, has changed the proposed rule to mitigate the impact to commercial navigation. Through the additional comment period, the Coast Guard encourages comments on this temporary rule, and may make further changes in light of them.

On 21 August 2002 the Coast Guard met with representatives of the bridge owner and contractor and made them aware of the generally negative tone of the comments in the docket at that time. Based on these objections, the bridge owner and contractor modified their request and put forth a proposal that cut in half the amount of time the Miami River could be obstructed by the Second Avenue Bridge. They requested that the Coast Guard revise the proposed rule to allow the Second Avenue Bridge to have one leaf in the down position for not more than nine hours starting three hours after one of the two daily high tides that occur on the Miami River. At all other times, both leaves would open on signal. GSC, as bridge contractor, and on behalf of the bridge owner, in consultation with the two major tug companies that assist in large vessel movements on the River, will submit a coordinated construction schedule to the Coast Guard, specifically, the Captain of the Port of Miami (COTP). The schedule will be reviewed by the COTP, who will promptly announce the schedule through broadcast local notices to mariners and local notices to mariners.

One tug operator on the Miami River commented that the proposed rule should not allow the Second Avenue Bridge to be in the horizontal (down) position for more than six hours, that it should fluctuate with the tidal cycles, that tug operators and GSC must coordinate when the Miami River would be obstructed by the single leaf in the horizontal (down) position, and that on Wednesdays the Miami River must remain unobstructed. The Miami River Commission (MRC), an entity created by the State of Florida to be an official clearinghouse for all public policy and projects on the Miami River, recommended similar provisions. The MRC's comment, however, included a six to ten hour daily window where the Miami River would be obstructed by the single leaf of the Second Avenue Bridge in the horizontal (down) position. Additionally, the MRC reiterates the bridge contractor's comment that details two separate six-week periods where bridge construction would occur. The Miami River Marine Group, a port cooperative trade association made up of stakeholders of the Miami River, commented that the leaf should be in the horizontal (down) position for not more than eight hours per day.

The Coast Guard has considered these comments in conjunction with the comment by the bridge owner and contractor to revise the proposed rule. The Coast Guard notes that MRC's proposal leaves open the option for a maximum ten-hour window daily period where the Miami River would be obstructed due to construction, and the bridge contractor's stated commitment to working with Miami River stakeholders to minimize the impact to commercial marine interests, who necessarily rely on larger vessels that require both leaves to be in the vertical (up) position. The bridge owner and contractor indicated in the August 21, 2002 meeting that they required one hour at either end of their work day to set up and then secure. The Coast Guard has determined, based on all comments received, that nine hours is an appropriate maximum window to allow the installation of the Second Avenue Bridge leaves, which necessarily must be done in the horizontal (down) position, thus restricting the Miami River to an approximately 70-foot horizontal navigation clearance.

After reviewing the comments received from the NPRM, the Coast Guard has revised the proposed rule to allow GSC to keep a single-leaf of the bridge in the horizontal (down) position nine hours each day except Wednesdays, starting three hours after one of the two daily high tides, generally the first daily high tide. The COTP will review and broadcast the bridge schedule. The bridge owner has agreed to publish the schedule each week, with a proposed schedule for the following week. In addition, tugs and tugs with tows will be exempt from the rush hour curfews on the drawbridges from the mouth of the Miami River to and including the N.W. 27th Avenue Bridge, except the new Second Avenue Bridge.

The bridge owner and contractors' requested revision includes two separate time windows of approximately six weeks each when they would install the two bridge leaves. The bridge contractor anticipates approximately one month between the two time windows. During the approximately one month period between the two construction windows, the Coast Guard does not anticipate the need to approve any schedule that requires the Second Avenue Bridge to impede navigability on the Miami River. The Coast Guard is also allowing an additional comment period and may change this rule based on comments received, and will terminate the rule early if construction is completed early.

This temporary rule incorporates the changes requested by the bridge owner and contractor, those recommended by the MRC as the State of Florida legislated clearinghouse for Miami River issues, and some requested changes from the Miami River Group as a representative entity of stakeholders on the Miami River. The Coast Guard regulates bridges across waterways to provide for the “reasonable needs of navigation.” The Coast Guard must ensure the public right of navigation is preserved while maintaining a reasonable balance between the competing needs of land and waterborne modes of transportation. The Coast Guard strives to promote and expedite projects that facilitate commerce and provide for the reasonable needs of present and prospective land and marine transportation. In this temporary rule the Coast Guard meets the reasonable needs of navigation while still permitting the construction of the Second Avenue Bridge, which will ultimately assist with navigation and the movement of vessel commerce on the Miami River. This temporary rule reduces the Second Avenue Bridge single leaf operations to not more than nine hours per day, six days a week. The Coast Guard may also allow minor deviations to the nine-hour maximum single leaf operation if large vessel traffic will not be affected by the deviation. Expansion of the construction windows through minor deviations should expedite bridge construction ultimately reducing the length of time that large commercial navigation will be potentially obstructed.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). The Coast Guard expects the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary because this rule requires a multi-interest coordinated schedule based on the high tides that provides for fifteen hours of daily unobstructed vessel flow on the Miami River and use of at least part of both high tides by vessel traffic, the Miami River will be unimpeded by the Second Avenue Bridge on Wednesdays (the busiest day for cargo shipping on the River), approximately seventy feet of horizontal clearance be available twenty four hours each day (although short periods of under one hour with less horizontal clearance are possible due to temporary safety hazards), and the rule only temporarily restricts the waterway.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast Guard has considered whether this rule will have a significant economic effect upon a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities because this rule requires a multi-interest coordinated schedule based on the high tides that provides for fifteen hours of daily unobstructed vessel flow on the Miami River and use of at least part of both high tides by large vessel traffic, the Miami River will be unimpeded by the Second Avenue Bridge on Wednesdays (the busiest day for cargo shipping on the River), approximately seventy feet of horizontal clearance will be available twenty four hours each day (although short periods of under one hour with less horizontal clearance are possible due to temporary safety hazards), and the rule only temporarily restricts the waterway.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult the person listed under FOR FURTHER INFORMATION CONTACT . The Coast Guard has created an additional comment period for this temporary rule, and is particularly interested in comments describing specific economic impacts to small entities. This will allow the Coast Guard to better evaluate impacts to small entities. We also have a point of contact for commenting on actions by employees of the Coast Guard. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule calls for no new collection of information requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their regulatory actions not specifically required by law. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Although this rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Execute Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The Coast Guard has considered the environmental impact of this action and has concluded that under figure 2-1, paragraph 32(e) of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket we have indicated under ADDRESSES .

On July 3, 2002, we published a notice of proposed rulemaking (NPRM) entitled Drawbridge Operation Regulations; Mystic River, Massachusetts, in the Federal Register (67 FR 44582). We received no comments in response to the notice of proposed rulemaking. No public hearing was requested and none was held.

The S99 Alford Street Bridge has a vertical clearance of 7 feet at mean high water and 16 feet at mean low water.

The existing regulations for the bridge listed at § 117.609, require the bridge to open on signal from 7 a.m. to 11 p.m.; except that, Monday through Saturday, excluding holidays, the draw need not open for the passage of vessel traffic from 7:45 a.m. to 9 a.m., 9:10 a.m. to 10 a.m., and 5 p.m. to 6 p.m. From 11 p.m. to 7 a.m., at least an eight hour advance notice is required for bridge openings.

The bridge owner, the City of Boston, asked the Coast Guard to change the drawbridge operation regulations to allow the bridge to open on signal, from November 1 through March 31, between 7 a.m. and 3 p.m. In addition, all opening requests between 3 p.m. and 7 a.m. shall require an eight hour advance notice.

The number of bridge openings November through March, from 3 p.m. to 7 a.m., for the last two years were 11 requests in 2000, and 5 requests in 2001.

The Coast Guard believes it is reasonable to allow the bridge owner to not be required to crew this bridge during the 3 p.m. to 7 a.m. shift in the winter months as a result of the low number of requests to open the bridge during that time period. We also believe the eight hour advance notice is appropriate and will meet the reasonable needs of navigation. It will allow any vessel the opportunity to transit the bridge provided they give the required advance notice.

The Coast Guard received no comments in response to the notice of proposed rulemaking and as a result, no changes have been made to this final rule.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3), of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979).

This conclusion is based on the fact that the bridge will open at all times for the passage of vessel traffic provided the eight hour notice is given.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b), that this rule will not have a significant economic impact on a substantial number of small entities.

This conclusion is based on the fact that the bridge will open at all times for the passage of vessel traffic provided the eight hour notice is given.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.

This final rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

We have considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (32)(e), of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation because promulgation of changes to drawbridge regulations have been found to not have a significant effect on the environment. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

On July 26, 2002, we published a notice of proposed rulemaking (NPRM) entitled Safety and Security Zone; Liquefied Natural Gas Carrier (LNGC) Transits and Anchorage Operations, Boston, Marine Inspection Zone and Captain of the Port Zone in Federal Register (67 FR 48834). We received 1 letter commenting on the proposed rule. No public hearing was requested, and none was held.

In light of the terrorist attacks in New York City and Washington, DC on September 11, 2001, safety and security zones are being established to safeguard the LNGC vessels and LNG facilities, the public, and the surrounding area from sabotage or other subversive acts, accidents, or other events of a similar nature, and to protect persons, vessels and others in the maritime community from the hazards associated with the transit and limited maneuverability of a LNGC vessel. These safety and security zones prohibit entry into or movement within the specified areas.

This rule establishes safety and security zones around LNGC vessels while the vessels are anchored in the waters of Broad Sound or moored at the Distrigas facility in Everett, MA. This rule also creates a moving safety zone around any LNGC vessel within navigable waters of the United States in the COTP Boston zone, as defined in 33 CFR 3.05-10. Under the Ports and Waterways Safety Act, navigable waters of the United States include all waters of the territorial sea of the United States as described in Presidential Proclamation No. 5928 of December 27, 1988. This Presidential Proclamation declared that the territorial sea of the United States extends to 12 nautical miles from the baseline of the United States determined in accordance with international law.

The Captain of the Port anticipates some impact on vessel traffic due to this regulation. However, the safety and security zones are deemed necessary for the protection of life and property within the COTP Boston zone.

The only comment received on this rulemaking commended the Coast Guard on protecting the LNGCs entering the port. In light of this comment and the lack of additional comments, no changes have been made to this rule.

This rule establishes three safety and security zones with identical boundaries, within the COTP Boston zone. The first safety and security zones are all waters of Broad sound within a 500 yard radius of any anchored LNGC vessel located within an area bounded by a line starting at position 42°25′ N, 070°58′ W; then running southeast to position 42°22′ N, 070°56′ W; then running east to position 42°22′ N, 070°50′ W; then running north to position 42°25′ N, 070°50′ W; then running west back to the starting point. The second safety and security zones are all waters of the Mystic River within a 400-yard radius of any LNGC vessel moored at the Distrigas LNG facility in Everett, MA. Finally, except as enumerated above, safety and security zones will be two miles ahead and one mile astern, and 500 yards on each side of any LNGC vessel underway within the COTP Boston zone. All coordinates are NAD 83.

This rulemaking replaces the established safety zone listed at 33 CFR 165.110. That safety zone does not provide the current necessary level of protection. Section 165.110 recognizes the safety concerns with transits of LNGC vessels, but is inadequate to protect LNGC vessels from possible terrorist attack, sabotage or other subversive acts. National security and intelligence officials warn that future terrorist attacks against civilian targets may be anticipated. Due to the flammable nature of LNGC vessels and impact the ignition of this cargo could have on the port of Boston and surrounding areas, increased protection of these vessels and the Distrigas facility is necessary.

This rulemaking provides increased protection for LNGC vessels moored at the Distrigas facility and establishes protection for the vessels in Broad Sound. It also provides continuous protection for LNGC vessels 2 miles ahead, 1 mile astern, and 500-yards on each side of an LNGC vessel anytime a vessel is underway within the COTP Boston zone, rather than limiting this protection to the limits of the Boston Main Ship Channel while a vessel is transiting Boston Harbor and Boston North Channel (as the previous zone in § 165.110).

The increased protection provided in this rule also recognizes the safety concerns associated with an unloaded LNGC vessel. 33 CFR 165.110 only establishes safety zones around loaded LNG tank vessels or while these vessels are transferring their cargo. This rule establishes safety and security zones around any LNGC vessel, loaded or unloaded, while anchored in Broad Sound, at the Distrigas facility pier, and any time a LNGC vessel is located in the Boston Marine Inspection Zone and Captain of the Port Zone, including the internal waters and out to 12 nautical miles from the baseline of the United States. These zones provide necessary protection to unloaded vessels, which continue to pose a safety and security risk if unprotected. This rulemaking also recognizes the continued need for safety zones around LNGC vessels, which are necessary to protect persons, facilities, vessels and others in the maritime community, from the hazards associated with the transit and limited maneuverability of a LNGC vessel laden with LNG or residual cargo.

No person or vessel will be able to enter or remain in these safety and security zones at any time without the permission of the Captain of the Port. Each person or vessel in a safety and security zone will be required to obey any direction or order of the Captain of the Port. The Captain of the Port will be able to take possession and control of any vessel in a security zone and remove any person, vessel, article or thing from a security zone. No person will be able to board, take or place any article or thing on board any vessel or waterfront facility in a security zone without permission of the Captain of the Port. These regulations are issued under authority contained in 50 U.S.C. 191, 33 U.S.C. 1225, 1226, and 1231.

Any violation of any safety or security zone described herein, is punishable by, among others, civil penalties (not to exceed $25,000 per violation, where each day of a continuing violation is a separate violation), criminal penalties (imprisonment for not more than 10 years and a fine of not more than $250,000), in rem liability against the offending vessel, and license sanctions.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979).

The Coast Guard expects the economic impact of this rule to be minimal enough that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary.

There may be some adverse effects on the maritime community by this rule, but those effects will be minimized by: the minimal time that vessels will be restricted from the areas, the ample room for vessels to navigate around the zones in Broad Sound and, in most portions of the navigable waters of the United States, the fact that vessels can transit ahead, behind, or after the passage of LNGC vessels. In addition, vessels will be able to request permission from the Captain of the Port or representatives on scene to pass through the zones, and advance notifications will be made to the local maritime community by marine information broadcasts.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast Guard considered whether this rule will have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in a portion of Broad Sound or Boston Harbor. For the reasons enumerated in the Regulatory Evaluation section above, in addition to the fact that small entities have been operating in the Captain of the Port Boston, MA, Zone under a similar regulation for over 18 years, these safety and security zones will not have a significant economic impact on a substantial number of small entities.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process. If your small business or organization will be affected by this rule and you have questions concerning its provisions or options for compliance, please call Chief Daniel Dugery, at (617) 223-3000. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comments on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Coast Guard analyzed this rule under Executive Order 13132, Federalism, and has determined that this rule does not have implications for federalism under that Order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government having first provided the funds to pay those costs. This rule does not impose an unfunded mandate.

This rule does not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

The Coast Guard analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Security Risks. This rule is not an economically significant rule and does not pose an environmental risk to health or risk to security that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. A rule with tribal implications has a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. We invite your comments on how this rule might impact tribal governments, even if that impact may not constitute a “tribal implication” under the Order.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The Coast Guard considered the environmental impact of this rule and concluded that, under figure 2-1, (34)(g), of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

On April 29, 2002, we published “Interim rule with request for comments” in the Federal Register (67 FR 20909). As of the end of the comment period, June 28, 2002, the Coast Guard has not received additional comments on this rule. No additional public hearings were requested, and none were held. Public comments received in response to the NPRM, published on January 18, 2002 at 67 FR 2614, were incorporated into the interim final rule. No comments were received on the interim final rule and, therefore, no changes have been made in this final rule

The September 11, 2001 terrorist attacks on New York City and Washington, DC inflicted catastrophic human casualties and property damage. National security and intelligence officials warn that future terrorist attacks are likely. Due to these heightened security concerns, safety and security zones are necessary for vessels that may be targets of terrorist acts. This final rule establishes safety and security zones for vessels the Captain of the Port (COTP) Boston determines are in need of a Coast Guard escort.

In the interim rule with requests for comments (67 FR 20909), the Coast Guard incorporated 22 comments from the public regarding this proposal. All comments received were considered in the development of this Final Rule. As of June 28, 2002 no additional changes have been proposed

This final rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979).

The Coast Guard expects the economic impact of this rule to be minimal enough that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary.

Although this final rule will prevent some traffic from moving within a portion of Boston Harbor during EV transits, the effect of this regulation will not be significant due to the minimal time that vessels will be restricted from the area; vessels can pass safely around the zones at most points in the Harbor; vessels will only have to wait a short time for the EV to pass if they cannot safely pass outside the zones; and advance notifications will be made to the local maritime community by marine information broadcasts.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast Guard considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this final rule will not have a significant economic impact on a substantial number of small entities. This final rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in a portion of Boston Harbor during EV transits. This final rule will not have a significant economic impact on a substantial number of small entities due to the minimal time that vessels will be restricted from the area of the zones; vessels can pass safely around the zones at most points in Boston Harbor; vessels will only have to wait a short time for the EV to pass if they cannot safely pass outside the zones; and advance notifications will be made to the local maritime community by marine information broadcasts.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard wants to assist small entities in understanding this final rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Chief Daniel Dugery at the address listed under ADDRESSES.

This final rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

The Coast Guard analyzed this final rule under Executive Order 13132 and has determined that this rule does not have implications for federalism under that Order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those costs. This rule would not impose an unfunded mandate.

This rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

The Coast Guard analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not pose an environmental risk to health or risk to safety that may disproportionately affect children.

This final rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. A rule with tribal implications has a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The Coast Guard considered the environmental impact of this rule and concluded that, under figure 2-1, (34)(g), of Commandant Instruction M16475.lD, this proposed rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Publishing an NPRM, which would incorporate a comment period before a final rule was issued, would be contrary to public safety interests since immediate action is needed to minimize potential danger to the public due to the high volume of vessel traffic and risk of collision posed by the approximately 500 participant vessels, the approximately 50 spectator vessels, and the several hundred vessels which congregate annually for Columbus Day in Biscayne Bay.

For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register .

Columbus Day Regatta, Inc., is sponsoring a sailboat race with approximately 500 sailboats, ranging in length from 20 to 60 feet participating in the event. The race will take place in Biscayne Bay from Dinner Key to Soldier Key on October 12 and 13, 2002. There will also be approximately 50 spectator craft and several hundred additional vessels in the area for an annual Columbus Day gathering. These regulations are intended to promote safe navigation on the waters of Biscayne Bay by controlling the traffic in the regulated area.

This rule creates a regulated area and prohibits non-participant persons and vessels from entering the regulated area without the permission of the Coast Guard Patrol Commander. The regulated area encompasses all waters bound by a line connecting the following points:

All coordinates are North American Datum 1983.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). The Coast Guard expects the economic impact of this temporary rule to be so minimal that a full regulatory evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary because entry into the regulated area is prohibited for a limited time and vessels may be allowed to enter the regulated area with permission of the Coast Guard Patrol Commander.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities because the regulations will only be in effect for two days in an area of limited commercial traffic and the Coast Guard Patrol Commander may permit vessels to enter the regulated area.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. Small businesses may contact the person listed under FOR MORE INFORMATION CONTACT for assistance in understanding and participating in this rulemaking. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Although this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The Coast Guard has considered the environmental impact of this action and has determined pursuant to Figure 2-1, paragraph 34(h) of Commandant Instruction M16475.lD, that this rule is categorically excluded from further environmental documentation.

The interim rule was published in the July 5, 2002, Federal Register (67 FR 44757) for a 60-day comment period. NARA did not receive any comments. Therefore, NARA is adopting the interim rule as final without change. This rule is not a significant regulatory action for the purposes of Executive Order 12866 and has not been reviewed by the Office of Management and Budget. As required by the Regulatory Flexibility Act, I certify that this rule will not have a significant impact on a substantial number of small entities. This regulation does not have any federalism implications. This rule is not a major rule.

The proposed rule was published in the July 10, 2002, Federal Register (67 FR 45684) for a 60-day public comment period. NARA notified several researcher organizations of the availability of the proposed rule. A copy of the proposed rule was also posted on the NARA Web site.

NARA received no comments on the proposed rule. The final rule is published without change. The rule will apply to researcher identification cards issued on or after the effective date. Cards issued prior to that date will remain valid for the period indicated on the card.

This final rule is not a significant regulatory action for the purposes of Executive Order 12866 and has not been reviewed by the Office of Management and Budget. As required by the Regulatory Flexibility Act, I certify that this rule will not have a significant impact on a substantial number of small entities because it applies only to individuals. This rule has no federalism or tribalism implications. This rule is not a major rule as defined in 5 U.S.C. Chapter 8, Congressional Review of Agency Rulemaking.

Throughout this document wherever “we”, “us”, or “our” are used we mean EPA.

EPA is approving changes to 326 IAC 6-1 as a revision to the Indiana SIP. These changes eliminate PM emissions limits on certain natural gas combustion sources, and replace the limits with a requirement that such sources may only burn natural gas. The changes also contain many cleanup provisions such as eliminating limits for sources which have shut down and updating names of sources. Third, the changes add PM contingency measures for the Lake County, Indiana PM nonattainment area.

Revised 326 IAC 6-1-1(c) states that PM limitations shall not be established for combustion units that burn only natural gas at sources or facilities identified in sections 8.1, 9, and 12 through 18 of the rule, as long as the units continue to burn only natural gas.

This revision replaces PM limitations on gas fired combustion units with the requirement that they only burn natural gas. Since natural gas combustion sources generally have very low PM emissions, enforcement of the “natural gas only” requirement will ensure that these units do not emit PM in excess of what would have been required under the previously approved rules.

Since this revised rule does not allow increased emissions over the current version, this change is not expected to have an adverse effect on air quality. Therefore, we are approving this requested SIP revision.

These revisions affect 326 IAC 6-1-1 through 6-1-6, and 6-1-8.1 through 6-1-18. They generally consist of minor wording changes, updating of source and facility names, and elimination of reference to sources or facilities which have ceased operations. While these changes will not result in a decrease in actual PM emissions, removal of sources and facilities which have shut down will result in a decrease in the emissions allowed under the rules.

In addition, IDEM has submitted “Continuous Compliance Plan” provisions in 326 IAC 6-1-10.1(l-v). These provisions have been a part of the State rules since 1993, but have not previously been submitted for EPA approval. These provisions required certain large sources in Lake County to submit “Continuous Compliance Plans” to the Indiana Department of Environmental Management by December 10, 1993. The plans were to contain documentation on operation and maintenance practices, a compliance schedule, and various recordkeeping requirements. The Continuous Compliance Plan provisions also contain 20% 3-minute average opacity limits on disposal and reclamation on iron and steel; maintenance of process vessels; and steel scrap burning or cutting and oxygen lancing operations. Approval of these regulations will strengthen the existing SIP.

These revisions improve the rule and have no impact on previously approved emissions limitations. Therefore, we are approving these requested SIP revisions.

Indiana has established certain PM contingency measures in 326 IAC 6-1-11.2. The contingency measures require emissions reductions from Lake County sources which are “culpable” for an exceedance of the National Ambient Air Quality Standards (NAAQS) for particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM 10 ). Culpability is defined as a contribution of 25 μg/m 3 for a source (entire plant) or 5 μg/m 3 for a facility (individual emissions unit). If there is a violation of either the 24-hour average (150 μg/m 3 ) or annual average (50 μg/m 3 ) PM 10 NAAQS, culpable sources and facilities will be required to submit reduction measures to reduce actual PM 10 emissions by 25%. Contributions are to be determined by the Indiana Department of Environmental Management.

Please note that we are making no determination at this time as to whether these contingency measures meet applicable Clean Air Act requirements, but we are approving the submitted contingency measures for the strengthening effect they will have on the SIP.

This SIP revision will not result in an increase in PM emissions, and several components of the revision will have a strengthening effect on the SIP, as discussed above. Therefore, we are approving the requested SIP revision.

Since this SIP revision does not relax any emissions limits it will not have an adverse effect on PM air quality. The elimination of limits on sources which have shut down will result in lower overall allowed emissions of PM. Also, approval of the Continuous Compliance Plan provisions and the Lake County Contingency Measures will strengthen the SIP.

We are approving, through direct final rulemaking, revisions to PM control requirements for natural gas combustion sources in Indiana, as well as various cleanup revisions to Indiana's PM rules and contingency measures for the Lake County, Indiana PM 10 nonattainment area. We are publishing this action without prior proposal because we view this as a noncontroversial revision and anticipate no adverse comments. However, in a separate document in this Federal Register publication, we are proposing to approve the SIP revision should adverse written comments be filed. This action will be effective without further notice unless we receive relevant adverse written comment by November 12, 2002. Should we receive such comments, we will publish a final rule informing the public that this action will not take effect. Any parties interested in commenting on this action should do so at this time. If no such comments are received, this action will be effective on December 10, 2002.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. section 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. section 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 10, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

On September 21, 2000, the West Virginia Division of Environmental Protection submitted a revision to its SIP to address the requirements for the Operation of Hot Mix Asphalt Plants. The revision consists of the adoption of Rule 45CSR3—To Prevent and Control Air Pollution from the Operation of Hot Mix Asphalt Plants.

This revision restructures and reorganizes Regulations 45CSR3, governing the prevention and control air pollution from the operation of hot mix asphalt plants. This revision specifies standards for opacity and particulate test methods. This revision also changes the opacity standard during start-up and shutdown from 60% to 40% with averaging of emissions using approved EPA test methods.

The EPA has determined that this revision to 45CSR3—To Prevent and Control Air Pollution From the Operation of Hot Mix Asphalt Plants meet all Federal criteria for approval.

EPA is approving West Virginia's Rule 45CSR3, submitted as a SIP revision on September 21, 2000, into the West Virginia SIP.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on December 10, 2002 without further notice unless EPA receives adverse comment by November 12, 2002. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 10, 2002. Filing a petition for reconsideration by the Administrator of this final rule approving revisions to West Virginia's regulation to prevent and control air pollution from the operation of hot mix asphalt plants does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

The NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management programs aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage as authorized under the National Flood Insurance Program, 42 U.S.C. 4001 et seq. ; unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59 et seq. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. However, some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue their eligibility for the sale of insurance. A notice withdrawing the suspension of the communities will be published in the Federal Register .

In addition, the Federal Emergency Management Agency has identified the special flood hazard areas in these communities by publishing a Flood Insurance Rate Map (FIRM). The date of the FIRM if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may legally be provided for construction or acquisition of buildings in the identified special flood hazard area of communities not participating in the NFIP and identified for more than a year, on the Federal Emergency Management Agency's initial flood insurance map of the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment under 5 U.S.C. 553(b) are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives a 6-month, 90-day, and 30-day notification addressed to the Chief Executive Officer that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications have been made, this final rule may take effect within less than 30 days.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Considerations. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless they take remedial action.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, October 26, 1987, 3 CFR, 1987 Comp.; p. 252.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of section 2(b)(2) of Executive Order 12778, October 25, 1991, 56 FR 55195, 3 CFR, 1991 Comp.; p. 309.

The modified base flood elevations are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified base flood elevation determinations are available for inspection is provided.

Any request for reconsideration must be based upon knowledge of changed conditions, or upon new scientific or technical data.

The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq. , and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified base flood elevations are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified elevations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, state or regional entities.

The changes in base flood elevations are in accordance with 44 CFR 65.4.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Administrator, Federal Insurance and Mitigation Administration, certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because modified base flood elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to maintain community eligibility in the National Flood Insurance Program. No regulatory flexibility analysis has been prepared.

Regulatory Classification. This interim rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

The Federal Emergency Management Agency (FEMA or Agency) makes final determinations listed below of base flood elevations and modified base flood elevations for each community listed. The proposed base flood elevations and proposed modified base flood elevations were published in newspapers of local circulation and an opportunity for the community or individuals to appeal the proposed determinations to or through the community was provided for a period of ninety (90) days. The proposed base flood elevations and proposed modified base flood elevations were also published in the Federal Register .

This final rule is issued in accordance with Section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67.

The Agency has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR Part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and Flood Insurance Rate Map available at the address cited below for each community.

The base flood elevations and modified base flood elevations are made final in the communities listed below. Elevations at selected locations in each community are shown.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Administrator, Federal Insurance and Mitigation Administration, certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because final or modified base flood elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and are required to establish and maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

This is a summary of the Federal Communications Commission's Memorandum Opinion and Order and Second Report and Order, FCC 02-139, adopted on May 2, 2002 and released on May 23, 2002 as corrected in Erratum DA-02-2256 adopted September 12, 2002 and released September 13, 2002. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554. The complete text may be purchased from the Commission's copy contractor, Qualex International, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at: http://www.fcc.gov. Alternative formats are available to persons with disabilities by contacting Brian Millin at (202) 418-7426 or TTY (202) 418-7365.

1. The major decisions we adopt in the Memorandum Opinion and Order today include:

• MURS: We affirm the decision to license by rule ( i.e. , eliminate individual licensing for, and instead license by rule) five VHF frequencies that were formerly licensed under Part 90 for low-power, industrial/business use, by placing frequencies in a new Part 95 Citizens Band Radio Service named the Multi-Use Radio Service (MURS).

• Eligibility: We decline to restrict the use of MURS to Part 90 Industrial/Business Pool eligibles. The general public is licensed by rule to use MURS for communications related to personal or business activities.

• Technical provisions: We revise the MURS technical rules to balance the benefits of adding technical flexibility against the disadvantages of potential degradation of the existing operations of business and industrial users. As with other services licensed by rule, the rules we adopt for MURS focus on technical equipment certification requirements. We also clarify that MURS is a two-way, short-distance, voice or data communication service intended for transmissions that do not typically require long duty cycles.

Under the revised rules, MURS units are:

• Permitted to have detachable antennas;

• Permitted to have external antennas up to 6.1 meters (20 feet) above a structure or 18.3 meters (60 feet) above the ground, whichever is higher;

• Permitted to have a total power output (TPO) of up to two (2) watts (instead of two (2) watts effective radiated power);

• Not permitted to be used as cordless telephones, radiofacsimile (imaging), or for continuous carrier mode operations; and

• Not permitted to be used for repeater operations.

• ATU list: We update the Airport Terminal Use (ATU) list found in Section 90.35(c)(61) of the Rules. The ATU list identifies, by name and reference coordinates, the airports at which certain 450 MHz band frequencies are reserved for stations located on or near the airports and used in connection with the servicing and supplying of aircraft.

2. The major decisions we adopt in the Second Report and Order include:

• “ Dockside” frequencies for high-power: We also address the comments and other filings in response to the Further Notice in this proceeding. Specifically, we adopt the proposal of the American Automobile Association (AAA) to revise the power limit on certain frequencies currently reserved for low power operations on a primary basis for cargo handling purposes at docksides. We are not, however, adopting AAA's proposal to require all applicants to obtain AAA's concurrence to use these frequencies.

• Public Safety Pool eligibility: We adopt our proposal to eliminate the eligibility restriction on school and park operations in the Public Safety Pool under Section 90.20 of our Rules. We also eliminate the restriction prohibiting State highway maintenance systems from operating on certain Public Safety Pool channels.

3. A Supplemental Final Regulatory Flexibility Analysis with respect to this Memorandum Opinion and Order has been prepared and is included. A Final Regulatory Flexibility Analysis has been prepared for the Second Report and Order and is included.

4. As required by the Regulatory Flexibility Act (RFA), a Final Regulatory Flexibility Analysis (FRFA) was incorporated in Appendix D of the Report and Order and Further Notice of Proposed Rule Making (R&O), 65 FR 60869, October 13, 2000. This Supplemental Final Regulatory Flexibility Analysis (SFRFA) considers the current Memorandum Opinion and Order and Second Report and Order (MO&O) and updates information contained in the FRFA. The present SFRFA, contained in the MO&O , conforms to the RFA.

5. This proceeding was initiated in conjunction with the Commission's 1998 biennial review of regulations pursuant to section 11 of the Communications Act of 1934, as amended (the Communications Act). On September 30, 1998, the Commission adopted a NPRM , 63 FR 65568, November 27, 1998, proposing a comprehensive review of the rules applicable to the PLMR services to determine which regulations were not in the public interest, obsolete, overly complex, required editorial change, or were redundant in nature. In the R&O adopted June 29, 2000, the Commission, among other things: expanded the availability of thirty-one “dockside” frequencies, doubled the PLMR license term from five years to ten years, and increased the time period in which certain PLMR stations must be placed in operation. The Commission also clarified the frequency coordination process for Public Safety Pool channels in the 220-222 MHz band and authorized Public Safety Pool licensees to share their licensed radio facilities with federal public safety providers. In addition, the Commission clarified the definitions of centralized and decentralized trunking and established a new process for licensing trunked systems. Finally, the Commission “licensed by rule,” i.e. , eliminated the individual licensing requirements for, five VHF frequencies that were allocated to the Part 90 Industrial/Business Pool for low power (1- or 2-watt) operations. Under this decision, the Commission reallocated the five VHF frequencies to the Part 95 Personal Radio Services and established a new Multi-Use Radio Service (MURS) under the Citizens Band Radio Services.

6. The rules adopted in this MO&O continue our efforts to consolidate and streamline the Part 90 Rules, allow more efficient use of the spectrum, and provide Part 90 licensees with greater flexibility and clarity concerning their operations. In particular, we affirm the decision to license by rule ( i.e. , eliminate individual licensing for, and instead license by rule) five VHF frequencies that were formerly licensed under Part 90 for low-power, industrial/business use, by placing frequencies in a new Part 95 Citizens Band Radio Service named the Multi-Use Radio Service (MURS). In addition, we decline to restrict the use of MURS to Part 90 Industrial/Business Pool eligibles. The general public is licensed by rule to use MURS for communications related to personal or business activities, and we revise the MURS technical rules to balance the benefits of adding technical flexibility against the disadvantages of potential degradation of the existing operations of business and industrial users.

7. No reconsideration petitions discussed issues directly in response to the previous FRFA.

8. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small business concern” under section 3 of the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. Nationwide, as of 1992, there were approximately 275,801 small organizations. “Small governmental jurisdiction” generally means “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000.” As of 1992, there were approximately 85,006 such jurisdictions in the United States. This number includes 38,978 counties, cities, and towns; of these, 37,566, or ninety-six percent, have populations of fewer than 50,000. The Census Bureau estimates that this ratio is approximately accurate for all governmental entities. Thus, of the 85,006 governmental entities, we estimate that 81,600 (ninety-one percent) are small entities. Below, we further describe and estimate the number of small entity licensees and regulatees that may be affected by the proposed rules, if adopted.

9. Public Safety radio services and Governmental entities. As a general matter, Public Safety Radio Pool licensees include police, fire, local government, forestry conservation, highway maintenance, and emergency medical services. The SBA rules contain a definition for small radiotelephone (wireless) companies, which encompasses business entities engaged in radiotelephone communications employing no more that 1,500 persons. There are a total of approximately 127,540 licensees within these services. Governmental entities as well as private businesses comprise the licensees for these services. The RFA also includes small governmental entities as a part of the regulatory flexibility analysis. “Small governmental jurisdiction” generally means “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000.” As of 1992, there were approximately 85,006 such jurisdictions in the United States. This number includes 38,978 counties, cities and towns; of these, 37,566, or 96 percent, have populations of fewer than 50,000. The Census Bureau estimates that this ratio is approximately accurate for all governmental entities. Thus, of the 85,006 governmental entities, the Commission estimates that 81,600 (91 percent) are small entities.

10. Estimates for PLMR Licensees. Private land mobile radio systems serve an essential role in a vast range of industrial, business, land transportation, and public safety activities. These radios are used by companies of all sizes operating in all U.S. business categories. Because of the vast array of PLMR users, the Commission has not developed a definition of small entities specifically applicable to PLMR users, nor has the SBA developed any such definition. The SBA rules do, however, contain a definition for small radiotelephone (wireless) companies. Included in this definition are business entities engaged in radiotelephone communications employing no more that 1,500 persons. According to the Bureau of the Census, only twelve radiotelephone firms of a total of 1,178 such firms which operated during 1992 had 1,000 or more employees. For the purpose of determining whether a licensee is a small business as defined by the SBA, each licensee would need to be evaluated within its own business area. The Commission's fiscal year 1994 annual report indicates that, at the end of fiscal year 1994, there were 1,101,711 licensees operating 12,882,623 transmitters in the PLMR bands below 512 MHz.

11. Equipment Manufacturers. We anticipate that radio equipment manufacturers will be affected by our decisions in this proceeding. According to the SBA's regulations, a radio and television broadcasting and communications equipment manufacturer must have 750 or fewer employees in order to qualify as a small business concern. Census Bureau data indicate that there are 858 U.S. firms that manufacture radio and television broadcasting and communications equipment, and that 778 of these firms have fewer than 750 employees and would therefore be classified as small entities.

12. We expect that, at most, the rules adopted herein will result in nominal new reporting, recordkeeping, or other compliance requirements imposed on entities affected in this proceeding.

13. The RFA requires an agency to describe any significant alternative that it has considered in reaching its proposed approach, which may include the following four alternatives, among others: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) and exemption from coverage.

14. Regarding our decision to express maximum operating power in terms of transmit power output (TPO) rather than effective radiated power (ERP), we do not believe that this will significantly impact small entities. Prior to the creation of MURS, the subject frequencies were restricted in terms of TPO, and our decision to retain this standard will provide continuity as well as the ability for users to utilize detachable gain-adding antennas (which would not be feasible were we to use the ERP standard).

15. Regarding our decision to restrict antenna height to 20 feet above structure or 60 feet above ground, whichever is higher, we do not anticipate any significant impact on small entities. Prior to the creation of MURS, transmitting antennas using the subject frequencies were limited in height due to a provision that restricted the distance between the radio control point and the center of the radiating portion of the antenna. Consequently, the new antenna height limits should not affect small entities that continue to operate on the subject frequencies. Moreover, we believe that antenna height restrictions will benefit small entities in that such restrictions promote spectrum sharing and re-use of the frequencies, thus enabling more small entities to take advantage of this radio service.

16. Regarding our decision to prohibit repeater operations, small (and other) entities wishing to extend the range of communications will not be allowed to do so. On balance, however, this restriction should benefit small entities in that it promotes spectrum sharing and frequency re-use, thus allowing a greater number of users to take advantage of this radio service. Moreover, any potential negative impact on small entities is mitigated due to our decision to grandfather existing operations on the subject frequencies. Consequently, any user that was authorized to use repeaters on the subject frequencies prior to the creation of MURS will continue to be allowed to do so. An alternative would be to allow repeater operations, but we believe that the resulting benefits of extended communications capabilities are outweighed by accommodating a greater number of users on these channels.

17. Regarding our decision to prohibit MURS radios from interconnecting with the Public Switched Network (PSN), small (and other) entities that want to use MURS frequencies for telephone or other interconnected types of service will not be allowed to do so. Allowing interconnection, however, would be inconsistent with the intent of this radio service, which is a two-way, short distance voice and data communications service of short duration. Typically, communications over the PSN last longer than the types of communications envisioned for MURS. An alternative would be to allow interconnection, but because PSN interconnected communications are typically duplex in nature, thus occupying two of five channels in a given area, this would severely limit the number of available channels at one time. In this connection, we believe that the prohibition on PSN interconnection will likely generally benefit small entities in that such restrictions promote spectrum sharing and re-use of the frequencies, thus enabling more small entities to take advantage of this radio service. Finally, any potential negative impact on small entities is mitigated due to our decision to grandfather existing operations on the subject frequencies. Consequently, any user that was authorized to interconnect with the PSN on the subject frequencies prior to the creation of MURS will continue to be allowed to do so.

18. Our decision to prohibit MURS users from operating in the continuous carrier mode, could impact small (and other) entities in that they will be prevented from doing so, and the alternative would be to allow such operations. As with antenna height limits, repeater use, and PSN interconnection, however, we believe that the benefits of increased spectrum sharing and frequency re-use far outweigh the potential negative impact on small entities. Moreover, the potential impact on small entities is mitigated due to our decision to grandfather existing operations on the subject frequencies. Consequently, any user that was authorized to operate in the continuous carrier transmit mode on the subject frequencies prior to the creation of MURS will continue to be allowed to do so.

19. Regarding our decision to prohibit the transmission of lengthy data image signals over MURS, we do not anticipate any significant impact on small entities. Transmissions of this type of communications was never allowed on the subject frequencies and allowing them now in MURS would be inconsistent with the intent of the service.

20. We do not anticipate that our decision to change the permissible bandwidth from 12.5 kHz to 20 kHz for frequencies 154.570 MHz and 154.600 MHz, will have any significant impact on small entities. Prior to the creation of MURS, the permissible bandwidth for these frequencies was 20 kHz, and changing it in the R&O to 12.5 kHz was an inadvertent error.

21. Our decision to prohibit the integration of MURS frequencies and FRS frequencies into a single radio unit, should not have a significant adverse impact on small entities. FRS is a narrowly tailored service intended for private two-way, very short distance voice communications for facilitating family and group activities. Small (and other) businesses are currently not eligible to operate on FRS frequencies and therefore, this prohibition should not have any adverse impact.

22. We also decline to delay the implementation of MURS by declining to adopt a transition/migration period, which might have assisted small entities that might face increased congestion and potential interference from the introduction of non-business operations on the subject frequencies. We have, however, adopted technical restrictions in this Memorandum Opinion and Order to mitigate the potential for harmful interference to small (and other) business operations. Furthermore, as noted above, as the subject frequencies are shared, business users were never insured of interference-or congestion-free operations. Finally, Motorola's suggested migration plan is too speculative, as it relies on the outcome of a pending proceeding. Consequently, based on the totality of the record, we believe that the public interest would not be served were we to delay MURS, and the impact, if any, of this decision on small entities is likely to be minimal.

23. Regarding our decision to update the airport terminal use (ATU) list, we do not anticipate any significant impact on small entities. Small entities that wish to operate on these ATU frequencies will have expanded opportunities to do so. Moreover, this decision should have little impact on small entity non-airport terminal business radio users located near these airports, because such operations will continue to be allowed.

24. As required by the Regulatory Flexibility Act (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Report and Order and Further Notice of Proposed Rule Making (Further Notice). The Commission sought written public comment on the proposals in the Further Notice, including comment on the IRFA. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

25. To further consolidate and streamline the Part 90 of the rules, reduce regulatory requirements, provide Part 90 licensees with greater flexibility concerning their operations, and promote increased spectrum sharing, the Commission amends Part 90 of its rules to (1) remove the restriction preventing school districts and authorities and park districts and authorities from being eligible for licenses in the Public Safety Pool; (2) remove the restriction preventing State highway maintenance systems from operating on certain channels in the Public Safety Pool; and (3) remove the power restriction on seven “dockside” channels in the Industrial/Business Pool.

26. These rule changes are needed in order to give park districts and authorities and school districts and authorities access to spectrum needed for important communications functions. Additionally, we believe that allowing such entities to operate on the Public Safety Pool channels will facilitate interoperability between park or school district personnel and other public safety entities, which can be very important especially during emergencies. Similarly, the inclusion of State highway maintenance systems on certain Public Safety Pool frequencies should give such systems access to spectrum needed for important communications functions. Finally, removal of the power restriction on the dockside channels will facilitate increased range and more reliable communications for Industrial/Business Pool eligibles.

27. No comments were submitted specifically in response to the IRFA. We have nonetheless considered the effect of these rule changes on small entities and considered other alternatives. We expect, however, that our actions will benefit all entities subject to these rule changes, including small entities.

28. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small business concern” under section 3 of the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. Nationwide, as of 1992, there were approximately 275,801 small organizations. “Small governmental jurisdiction” generally means “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000.” As of 1992, there were approximately 85,006 such jurisdictions in the United States. This number includes 38,978 counties, cities, and towns; of these, 37,566, or ninety-six percent, have populations of fewer than 50,000. The Census Bureau estimates that this ratio is approximately accurate for all governmental entities. Thus, of the 85,006 governmental entities, we estimate that 81,600 (ninety-one percent) are small entities. Below, we further describe and estimate the number of small entity licensees and regulatees that may be affected by the proposed rules, if adopted.

29. Public Safety radio services and Governmental entities. As a general matter, Public Safety Radio Pool licensees include police, fire, local government, forestry conservation, highway maintenance, and emergency medical services. The SBA rules contain a definition for small radiotelephone (wireless) companies, which encompasses business entities engaged in radiotelephone communications employing no more that 1,500 persons. There are a total of approximately 127,540 licensees within these services. Governmental entities as well as private businesses comprise the licensees for these services. The RFA also includes small governmental entities as a part of the regulatory flexibility analysis. “Small governmental jurisdiction” generally means “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000.” As of 1992, there were approximately 85,006 such jurisdictions in the United States. This number includes 38,978 counties, cities and towns; of these, 37,566, or 96 percent, have populations of fewer than 50,000. The Census Bureau estimates that this ratio is approximately accurate for all governmental entities. Thus, of the 85,006 governmental entities, the Commission estimates that 81,600 (91 percent) are small entities.

30. Estimates for PLMR Licensees. Private land mobile radio systems serve an essential role in a vast range of industrial, business, land transportation, and public safety activities. These radios are used by companies of all sizes operating in all U.S. business categories. Because of the vast array of PLMR users, the Commission has not developed a definition of small entities specifically applicable to PLMR users, nor has the SBA developed any such definition. The SBA rules do, however, contain a definition for small radiotelephone (wireless) companies. Included in this definition are business entities engaged in radiotelephone communications employing no more that 1,500 persons. According to the Bureau of the Census, only twelve radiotelephone firms of a total of 1,178 such firms which operated during 1992 had 1,000 or more employees. For the purpose of determining whether a licensee is a small business as defined by the SBA, each licensee would need to be evaluated within its own business area. The Commission's fiscal year 1994 annual report indicates that, at the end of fiscal year 1994, there were 1,101,711 licensees operating 12,882,623 transmitters in the PLMR bands below 512 MHz.

31. Equipment Manufacturers. We anticipate that radio equipment manufacturers will be affected by our decisions in this proceeding. According to the SBA's regulations, a radio and television broadcasting and communications equipment manufacturer must have 750 or fewer employees in order to qualify as a small business concern. Census Bureau data indicate that there are 858 U.S. firms that manufacture radio and television broadcasting and communications equipment, and that 778 of these firms have fewer than 750 employees and would therefore be classified as small entities.

32. The Rules adopted in this Order have minimal additional reporting or recordkeeping requirements for PLMR licensees.

33. The RFA requires an agency to describe any significant alternative that it has considered in reaching its proposed approach, which may include the following four alternatives, among others: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) and exemption from coverage.

34. Regarding our decision to eliminate eligibility restrictions on park districts and authorities and school districts and authorities so that these entities may obtain licenses to operate on Public Safety Pool channels, see paras. 52-54, supra , there should be no significant adverse impact on small entities. Indeed, small entities should benefit from this decision, as they will have greater opportunities for licensing now that they will be allowed to operate on the Public Safety Pool frequencies. An alternative to this proposal would be to retain the current rule, which would be unsatisfactory because it would leave the parks without any possibility of operating radio stations for the transmission of communications essential to their official activities.

35. Regarding our decision to eliminate the rule restricting State highway maintenance systems from operating on certain Public Safety Pool frequencies, we do anticipate any adverse impact on small entities. An alternative to this decision would be to continue the prohibition. This would, however, be unsatisfactory, as allowing State highway maintenance systems to operate on the subject frequencies furthers the important Commission goals of increased spectrum sharing and interoperability of public safety communications.

36. Finally, our decision to eliminate the power restriction on seven of the thirty-one “dockside” channels, should not have any adverse impact on small entities. The potential to pair these dockside frequencies with the AERS or other Industrial/Business Pool frequencies will result in greater opportunities for small (and other) business due to increased signal coverage and more reliable communications. In addition, concerns of harmful interference to existing low power users on the subject frequencies are mitigated, because operation on these frequencies will continue to require frequency coordination from a Commission-certified frequency coordinator.

37. Pursuant to sections 1, 4(i), 303(f) and (r), 332, and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 1, 154(i), 303(f) and (r), 332, and 405 the Petition for Reconsideration filed by Motorola, Inc. on November 13, 2000, is denied .

38. Pursuant to sections 1, 4(i), 303(f) and (r), 332, and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 1, 154(i), 303(f) and (r), 332, and 405 the Petition for Reconsideration filed by RadioShack Corporation on January 3, 2001, is denied .

39. Pursuant to sections 1, 4(i), 303(f) and (r), 332, and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 1, 154(i), 303(f) and (r), 332, and 405 the Petition for Reconsideration filed by the Personal Radio Steering Group, Inc. on November 13, 2000, is granted to the extent indicated herein and otherwise denied .

40. Pursuant to sections 1, 4(i), 303(f) and (r), 332, and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 1, 154(i), 303(f) and (r), 332, and 405 the Petition for Reconsideration filed by William C. Easterday on November 13, 2000, is dismissed as moot.

41. Pursuant to sections 1, 4(i), 303(f) and (r), 332, and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 1, 154(i), 303(f) and (r), 332, and 405 the Petition for Reconsideration filed by the Personal Communications Industry Association, Inc. on November 13, 2000, is granted .

42. Pursuant to sections 1, 4(i), 303(f) and (r), 332, and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 1, 154(i), 303(f) and (r), 332, and 405 the Petition for Reconsideration filed by the American Association of State Highway and Transportation Officials on November 13, 2000, is granted to the extent indicated herein and otherwise denied .

43. The amendments of the Commission's Rules as set forth in the rule changes are adopted , effective November 12, 2002.

44. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Memorandum Opinion and Order and Second Report and Order , WT Docket No. 98-182, including the Supplemental Final and Final Regulatory Flexibility Analyses, to the Chief Counsel for Advocacy of the Small Business Administration.

This is a summary of the Commission's Second Report and Order and Second Memorandum Opinion and Order in MM Docket 00-39, FCC 02-230, adopted August 8, 2002 and released August 9, 2002. The full text of this document is available for inspection and copying during regular business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW., Washington, DC 20554. It is also available on the Commission's internet site at http://www.fcc.gov. The complete text of this document also may be purchased from the Commission's duplication contractor Qualex International, (202) 863-2893 voice, (202) 863-2898 Fax, qualexint@aol.com email, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554.

1. DTV Reception Capability. In the Report and Order and Further Notice of Proposed Rule Making ( Report and Order/Further NPRM ), 66 FR 65122, January 18, 2001, the Commission recognized the arguments of broadcasters that DTV receivers are not yet available in the market in large quantities, and certainly not in sufficient volume to support a rapid transition to an all-digital broadcast television service. It therefore requested comment on whether it should require that new TV receivers have the capability to demodulate and decode over-the-air DTV signals, and if so, on how to implement such a requirement. The Commission recognized that it would not be economically feasible at this point to require that DTV reception capability in smaller screen receivers. It stated that it intended to consider an approach that would minimize the cost of a DTV reception capability requirement by phasing it in over time. The Commission indicated that it believed this approach would allow manufacturers to take advantage of the declining costs associated with increasing manufacturing volumes.

2. Based on analysis of the record, the Commission concludes that consumer electronics manufacturers are not voluntarily incorporating DTV reception capability into new receivers on a schedule that will enable the transition to proceed towards the December 31, 2006, target completion date set forth in the Communications Act by Congress (47 U.S.C. 309(j)(14). It therefore is amending its rules to require that new broadcast television receiving equipment include the capability to receive DTV signals. The Commission stated that this requirement will be phased in over time to avoid imposing undue costs on manufacturers or consumers and to minimize any disruption of the TV receiver market. In this regard, the Commission stated that the implementation plan it is adopting reflect and account for the facts that: (1) Including DTV reception capability in new television receivers will require the redesign of product lines, (2) the cost of including that capability in receivers will initially result in an incremental price increase on the order of approximately $200, and perhaps more, per unit, and (3) prices will decline significantly as economies of scale are achieved with increasing volumes of production and production efficiencies that are introduced over time. It stated that this plan will ensure that consumers are provided the capability to receive broadcasters' DTV signals so that the transition of the broadcast television service from analog to digital transmission technology can progress rapidly.

3. The new rules will require that a party responsible for television receiving equipment (“responsible party”) under the Commission's rules, generally the manufacturer or importer, include DTV tuners in a certain percentage of that party's entire production or importation of receivers in specific categories. Responsible parties will be required to equip new television receiving equipment that manufactured is shipped in interstate commerce or manufactured in the United States and for which they are responsible with the capability to tune and decode over-the-air DTV signals on all of the channels allocated for TV service in accordance with the following schedule:

4. For purposes of these requirements, screen sizes are to be measured diagonally across the picture viewing area. The rules will also allow responsible parties to include combinations of DTV monitors and set-top DTV tuners in meeting the required percentages of units with a DTV tuner if such combinations are marketed together with a single price. Where set-top boxes and DTV monitors are sold as a combination, the screen size of the DTV monitor will determine the receiver size category towards which the combination may be counted.

5. Update of the DTV Transmission Standard. In comments responding to the Notice of Proposed Rule Making ( NPRM ), 65 FR 15600, March 23, 2000, in this proceeding, ATSC indicated that it has made a number of changes to its “ATSC Digital Television Standard (A/53),” since 1996, when that standard was adopted by the Commission as the standard for terrestrial DTV broadcast service. ATSC indicated that these changes include removing constraints associated with the “program paradigm,” updating references to the underlying MPEG standards, replacing references to obsolete ATSC standards for Electronic Program Guide and System Information with a reference to the subsequently developed “ATSC Program and System Information Protocol (PSIP) Standard, A/65,” and requiring a signal to identify colorimetry. It further noted that it was considering an increase in the maximum allowable audio bit rate. ATSC requested that the Commission revise its rules to reference the latest version of the ATSC DTV Standard A/53. In the Report and Order/Further NPRM, the Commission sought comment on whether is should revise its rules to include reference the latest version of the standard as requested by ATSC.

6. The Commission found that it is desirable and appropriate to revise the rules to update its DTV rules to specify the August 7, 2001, version of ATSC DTV Standard A/53B in place of the September 16, 1995, version originally adopted. It stated that updating the rules to reflect improvements in the standard will benefit both the public and broadcasters by allowing broadcasters to make technical improvements in their service that will enhance the quality of DTV services they provide. Accordingly, the Commission is revising § 73.682(d) of its rules to specify ATSC Doc A/53B (ATSC Digital Television Standard, 7 Aug 01), except for Section 5.1.2 (“Compression format constraints”) of Annex A (“Video Systems Characteristics”) and the phrase “see Table 3” in Section 5.1.1 Table 2 and Section 5.1.2 Table 4. These exceptions are as provided in the current § 73.682(d) and were set forth in the Commission's decision adopting the ATSC standards for DTV service in Fourth Report and Order in the DTV proceeding.

7. In its comments responding to the NPRM, ATSC also requested that the Commission require use of the ATSC PSIP Standard as part of the DTV transmission standard. In responding to this request in the Report and Order/Further NPRM, the Commission stated that it believes that an industry approach is generally the most appropriate means for managing the implementation of a PSIP system. However, the Commission recognized that the transport stream identifiers (TSIDs) used with the PSIP system must be unique to each individual television station and that there is a need to coordinate TSID assignments for stations in the border areas with our neighbors in Canada and Mexico. The Commission therefore agreed that TSID assignments should be made part of its process for broadcast television stations and stated that it will begin the process to incorporate this function into that process in the near future.

8. In Second Report and Order and Second Memorandum Opinion and Order, the Commission stated that it recognizes the benefits for broadcasters and consumers of the service features offered by the ATSC PSIP specification. It stated that in view of the of the broadcast and consumer electronics industries' support for incorporation of this specification in the rules, it will address the possible adoption of the ATSC PSIP specification into the rules in the Notice of Proposed Rule Making in our forthcoming Second Review of our policies for the DTV transition. The Commission further stated that in the interim, it we will include a reference to the ATSC PSIP Standard in § 73.682(d) of the rules as a document that licensees may consult for guidance.

9. Other Issues. The Commission also refrained at this time from adopting its proposal to require that TV receivers that are not able to receive over-the-air digital broadcast signals be labeled that they are not able to receive such signals. The Commission indicated at that at this point, it does not know when—or if—such products will become commercially available or how they will be marketed. It stated that it will continue to monitor the state of the marketplace and will take additional steps if necessary to protect consumers' interests.

11. As required by the Regulatory Flexibility Act (RFA), 1 an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Report and Order and Further Notice of Proposed Rule Making in MM Docket No. 00-39 ( Report and Order/Further NPRM ).”  2 The Commission sought written public comment on several issues concerning the transition to digital television (DTV), including comment on the IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA. 3

12. Beginning in 1987, the Commission undertook to bring the most up-to-date technology to broadcast television. That resulted in several Commission decisions including those adopting a digital television (DTV) standard, DTV service rules, and a Table of DTV Allotments. The Table of DTV Allotments provides each existing television broadcaster with a second channel on which to operate a DTV station for the transition period after which one of its channels will revert to the government for use in other services. The transition deadline established by Congress is December 31, 2006. The Commission is permitted to extend that deadline on a market-by-market basis if more than 15 percent of viewers will be left without service from (1) a digital television receiver; (2) an analog television receiver equipped with a digital/analog converter; or (3) a multi-channel video provider that carries local broadcast stations.

13. The Commission has determined that a requirement to include DTV reception capability in new television sets is necessary due to the lack of progress by the market in including DTV reception capability in new television receivers. In particular, the Commission is concerned that continued marketing of analog-only TV sets can only serve to delay the transition. In order for the DTV transition to move forward towards the year 2006 target completion date established by Congress, or thereafter as close to that date as possible, receivers with DTV capability need to be on the market in quantity and at reasonable prices very soon. Since it was adopted by the Commission in 1996, the DTV transmission standard has been updated by its developers to include new features and to improve several aspects of its performance. The rules need to be revised to allow television stations to implement these new features and improvements.

14. No comments were filed in response to the IRFA.

15. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. 4 The RFA defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.”  5 In addition, the term “small business” has the same meaning as the term “small business concern” under section 3 of the Small Business Act. 6 A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. 7

16. Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies “unless an agency, after consultation with the Office of Advocacy of the [SBA] and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register .” A “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.”  8 Nationwide, as of 1992, there were approximately 275,801 small organizations. 9 “Small governmental jurisdiction” generally means “governments of cities, counties, towns, townships, villages, school districts, or special districts with a population of less than 50,000.”  10 As of 1992, there were approximately 85,006 local governments in the United States. 11 This number includes 38,978 counties, cities, and towns; of these, 37,566, or 96 percent, have populations of fewer than 50,000. 12 The Census Bureau estimates that this ratio is approximately accurate for all governmental entities. Thus, of the 85,006 governmental entities, we estimate that 81,600 (91 percent) are small entities.

17. Rules adopted in this proceeding will apply to manufacturers of television transmitting and receiving equipment and to television stations. The SBA has established a small business size standard for Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. Under this standard, business firms are considered small if they have 750 or fewer employees. 13 Census data for 1997 indicate that, for that year, there were a total of 1,215 establishments  14 in this category. 15 Of those, there were 1150 that had employment under 500, and an additional 37 that had employment of 500 to 999. The percentage of broadcast equipment manufacturers to others in this category is approximately 22%, 16 so we estimate that the number of broadcast equipment manufacturers with employment under 500 was actually closer to 253, with an additional 8 establishments having employment of between 500 and 999. Television manufacturers alone ( i.e., without radio) accounted for yet smaller numbers. Given the above, we estimate that the great majority of television broadcasting equipment manufacturers are small.

18. The SBA has also established a small business size standard for Audio and Video Manufacturing, which includes the manufacturing of television sets. Under this standard, business firms are considered small if they have 750 or fewer employees. 17 Census data for 1997 indicate that, for that year, there were a total of 554 establishments in this category. 18 Of those, there were 542 that had employment under 500, and an additional 9 that had employment of 500 to 999. 19 The percentage of television set manufacturers to others in this category is approximately 6.3%, [FN H] so we estimate that the number of broadcast equipment manufacturers with employment under 500 was actually closer to 34, with an additional zero or one establishment having employment of between 500 and 999. Given the above, we estimate that virtually all television set manufacturers are small.

19. The SBA defines small television broadcasting stations as television broadcasting stations with $10.5 million or less in annual receipts. 20 According to Commission staff review of the BIA Publications, Inc., Master Access Television Analyzer Database, fewer than 800 commercial TV broadcast stations (65%) subject to our proposal have revenues of less than $10.5 million dollars. We note, however, that under SBA's definition, revenues of affiliates that are not television stations should be aggregated with the television station revenues in determining whether a concern is small. Therefore, our estimate may overstate the number of small entities since the revenue figure on which it is based does not include or aggregate revenues from non-television affiliated companies. It would appear that there will be no more than 800 entities affected.

20. The actions taken in the Second Report and Order and Second Memorandum Opinion and Order impose no reporting or recordkeeping requirements on television broadcast stations, large or small, or on manufacturers of television transmitting or receiving equipment, large or small. The only compliance burden adopted in this Second Report and Order and Second Memorandum Opinion and Order is the requirement that new television receivers be capable of tuning over-the-air DTV signals, which is described in Section E, infra . 21

21. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. 22

22. The Commission recognizes that requiring DTV reception capability in new television receivers that action will pose new burdens on consumer electronics manufacturers, especially in the initial period when production volumes are relatively low. It further recognizes that the cost considerations associated with DTV reception capability are such that it would not be economically feasible at this point in time to include DTV capability in smaller screen receivers. However, as production increases, the price and size of the components needed for DTV reception will decline substantially, so that the incremental cost of including that capability in TV receivers will eventually become low.

23. The plan for implementing the DTV tuner requirement adopted in the Second Report and Order and Second Memorandum Opinion and Order is designed to be as simple and inexpensive to manufacturers as possible, including any small entities. This plan will minimize the impact on receiver manufacturers by phasing the requirement in over time. By applying the requirement first to large screen receivers, some models of which now already include an integrated DTV tuner, the plan will provide time for manufacturers to develop the economic efficiencies needed to produce TV sets with DTV tuners at lower cost. Over time the percentage of units that will have to have DTV reception capability will increase and the requirement would also be extended to smaller screen units in the same incremental manner. To minimize the impact on costs to manufacturers, receivers will only be required to have the capability to receive and decode over-the-air DTV signals. Thus, TV sets subject to the requirement will only have to provide useable picture and sound commensurate with their video and sound capabilities when receiving any of the recognized ATSC video formats; there is no requirement for full HDTV capability.

24. While extending the phase in period beyond July 1, 2007, 23 would have provided additional time for manufacturers to develop cost reductions, the Commission found that imposing the requirement on all receivers by this date was necessary in order to be consistent with the statutory specification of this date as the target for completing the DTV transition. The Commission also chose not to adopt an alternative that would have based the measure of compliance on the percentage of models that a manufacturer produces with DTV tuners. The plan adopted bases the measure of compliance on a manufacturer's total production of TV receivers. However, the Commission did allow manufacturers to include set-top DTV tuners marketed together with a DTV-ready receiver in the number of units that count towards meeting this requirement.

25. The Commission's action to update the DTV transmission standard to reflect the most recent version that has been issued by the Advanced Television Systems Committee is expected to have no adverse on any small entity. In this regard, the changes in the most recent version are all backwards compatible with the specifications of the version of the standard that was previously adopted and thereby with the capabilities of existing DTV transmission and receiving equipment.

26. As noted, we received comments asking, inter alia, that requirements we adopt be phased in more quickly, 24 and we chose instead to adopt the phase in schedule described. We believe that rejecting the alternative of a quicker transition will assist those manufacturers that are also small entities.

The Transportation Recall Enhancement, Accountability, and Documentation (TREAD) Act (Public Law 106-414) was enacted on November 1, 2000. The TREAD Act, among other things, amended 49 U.S.C. 30166 to add new subsection (l), “Reporting of defects in motor vehicles and products in foreign countries,” and new subsection (m), “Early warning reporting requirements.” Because the TREAD Act required us to publish a final rule on early warning reporting by June 30, 2002, and did not impose a deadline for reporting of foreign defects, we accorded priority to implementing Section 30166(m). We issued an advance notice of proposed rulemaking (ANPRM) on January 22, 2001 (66 FR 6532) in which we sought comments on two issues that were also related to the reporting of foreign defects: manufacturers to be covered by the new regulations and the definition of “substantially similar” motor vehicles and equipment. The comments on the ANPRM assisted us in addressing both these issues in the NPRM on the reporting of foreign defects, to be codified in Subpart B of 49 CFR part 579, published on October 11, 2001 (66 FR 51907), and in the NPRM on early warning reporting, to be codified in Subpart C of 49 CFR part 579, published on December 21, 2001 (66 FR 66190). In addition, the NPRM on early warning proposed a Subpart A to Part 579, which contains a statement of application and terminology that would apply to both Subpart B and Subpart C.

We encouraged readers to review the two NPRMs in parallel to ensure consistency (66 FR 66191). The comments in response to both these NPRMs raised some issues applicable to both rulemakings, which were resolved in the early warning final rule, published on July 10, 2002 (67 FR 45822). To the extent that the resolution of these issues is equally applicable to the foreign defect reporting final rule, we shall not discuss them in the detail that we did in the early warning final rule, but shall incorporate relevant discussions by reference and provide page citations for them.

Comments on the October 11, 2001 NPRM were submitted by manufacturers of motor vehicles (the Alliance of Automobile Manufacturers (the Alliance) (whose members are BMW, DaimlerChrysler, Fiat, Ford, General Motors, Isuzu, Mazda, Mitsubishi, Nissan, Porsche, Toyota, Volvo and Volkswagen), the Association of International Automobile Manufacturers, Inc. (AIAM), Ford Motor Company (Ford), Volkswagen of America, Inc. (VW) including Volkswagen AG and Audi AG, Nissan North America, Inc. (Nissan), the Truck Manufacturers Association (TMA), and Harley-Davidson Motor Company (Harley-Davidson), equipment manufacturers (the Motor Equipment Manufacturers Association (MEMA) together with the Original Equipment Suppliers Association, Breed Technologies (Breed), Delphi Automotive Systems, LLC (Delphi), Johnson Controls (Johnson), and Bendix Commercial Vehicle Systems, LLC (Bendix)), public interest groups (Advocates for Highway and Auto Safety (Advocates) and Public Citizen (PC)), and the National Automobile Dealers Association (NADA). The Juvenile Products Manufacturers Association (JPMA) represented the views of child restraint system manufacturers. The Rubber Manufacturers Association (RMA) represented those of the tire industry. The early warning rule identifies entities that commented on the term “manufacturer” and the phrase “substantially similar motor vehicles and equipment” in the context of that rulemaking.

As the preamble to the October 2001 NPRM noted, during 2000, NHTSA's Office of Defects Investigation (ODI) became aware of three “Owner Notification Programs” that Ford Motor Company (Ford) had conducted on Ford-manufactured sport utility vehicles equipped with ATX and Wilderness tires manufactured by Bridgestone/Firestone, Inc. (Firestone). These vehicles had been sold for use in the Persian Gulf region, Thailand, and Venezuela. In each case, Ford explained to owners that it was offering to replace the tires because they might experience interior tire degradation and tread separation, due to usage patterns and environmental conditions unique to each geographical region, “resulting in a loss of vehicle control.” In none of the three cases did Ford immediately notify NHTSA that it was taking this action, because, as it explained later, there was no regulation requiring it to do so.

Manufacturers of motor vehicles and replacement equipment were, and are, under a longstanding obligation to notify NHTSA if the manufacturer “learns the vehicle or equipment contains a defect and decides in good faith that the defect is related to motor vehicle safety.” (49 U.S.C. 30118(c)(1)). Similarly, under Section 30118(c)(2), when the manufacturer decides in good faith that a vehicle or equipment item does not comply with an applicable Federal motor safety standard, it must report the noncompliance to NHTSA. The precursor to Section 30118(c), which contained substantially similar language, has been held to impose upon a manufacturer the duty “to notify and remedy whether it actually determined, or it should have determined, that its [products] are defective and the defect is safety-related.” United States v. General Motors Corp. (X-Cars), 656 F. Supp. 1555, 1559 n.5 (D.D.C. 1987) (emphasis added), affirmed, 841 F. 2d 400 (D.C. Cir. 1988), citing United States v. General Motors Corp., 574 F. Supp. 1047, 1050 (D.D.C. 1983).

Pursuant to 49 U.S.C. 30166, NHTSA has extensive investigative authority. However, until the TREAD Act, the only regulatory requirements to provide information to NHTSA about potential defects were established by 49 U.S.C. 30166(f), “Providing copies of communications about defects and noncompliance,” as implemented by 49 CFR 573.8, “Notices, bulletins, and other communications” (now 49 CFR 579.5(a)). Section 30166(f) provides that:

To implement Section 30166(f), NHTSA adopted 49 CFR 573.8, which specifies that:

PC accurately commented that the regulation does not explicitly exclude the submission of communications provided to dealers overseas. However, NHTSA has never interpreted Section 573.8 to specifically address manufacturer communications only to overseas dealers, and this question was not within the scope of the NPRM. Accordingly, we are not addressing it further in this rule.

To address foreign reporting and other issues, the TREAD Act (Public Law 106-414) was enacted on November 1, 2000. Section 3(a) of the TREAD Act amended 49 U.S.C. 30166 to add a new subsection (l), which reads as follows:

The obligation to report under the first two paragraphs above was effective on the day that the TREAD Act was signed into law, November 1, 2000. Since that date, NHTSA has, in fact, received numerous notifications of foreign safety campaigns being conducted by vehicle and equipment manufacturers. The content, format, and scope of these reports have varied, which supports the need for a regulation that defines and standardizes the information provided, as required by the third subparagraph. For example, at the time of the NPRM, Ford was conducting a “field action” in Thailand, Malaysia, and Fiji to replace faulty brake caliper bodies on certain Mazda Fighter and Ford Ranger J97 vehicles. Ford advised us that “This model is not marketed in the United States.” This leaves unanswered the question whether the model is substantially similar to one marketed in the United States, or whether the brake caliper bodies are identical or substantially similar to brake caliper bodies on Ford/Mazda vehicles that are sold in the United States. At the same time, Firestone was conducting a “Customer Satisfaction Program” in the Middle East covering certain tires manufactured in its Wilson, North Carolina plant that were original equipment on 589 vehicles manufactured by Ford, specifically model year 1998 and 1999 Ford Taurus and Mercury Sable sedans and station wagons. Its letter to us did not state whether similar tires were used on vehicles in the United States.

With the recent publication of the early warning reporting final rule (67 FR 45822), 49 CFR part 579 was reissued with the title “Reporting of Information and Communications About Potential Defects,” and the previous provisions of Part 579 were moved and incorporated into 49 CFR Part 573. The notice issuing the early warning final rule established both Subparts A (General) and C (Reporting of Early Warning Information) of Part 579. Subpart A is comprised of sections that establish the scope of Part 579, and its purpose, application, and terminology. That subpart also specifies the address and manner for submitting reports and other information under Part 579, and establishes requirements governing certain notices, bulletins, and other communications to more than one manufacturer, distributor, dealer, lessor, lessee, owner, or purchaser in the United States. See Section 579.5(a). The rule we are issuing today on foreign campaign reporting establishes Subpart B (Reporting of Safety Recalls and Other Safety Campaigns in Foreign Countries).

The October 2001 NPRM proposed to establish Sections 579.11, “Additional definitions for subpart B,” 579.12, “Identical or substantially similar vehicles and equipment,” 579.13, “Reporting responsibilities,” 579.14, “Content of reports,” and 579.15, “Who may submit reports.” As mentioned above, thereafter the December 2001 NPRM on early warning reporting, among other things, noted that it included in Subpart A provisions, applicability, and terminology that would apply to both Subpart B on foreign defect reporting and Subpart C on early warning reporting. We address applicability and the term “manufacturer” under point B below. For organizational purposes of locating all definitions in Subpart A, we will add definitions of “foreign country,” “foreign government,” “safety recall,” and “other safety campaign” to Section 579.4 rather than provide a separate definitions section in Subpart B. These definitions and substantive issues related to them are addressed in under point C below.

In Subpart A of Part 579, which was published on July 10, 2002 and applies to today's rule, we defined manufacturer as:

Under Application (Section 579.3(a)), the rule states that:

In developing these provisions, we considered numerous comments. A number of commenters had taken the same positions in their comments on both the October 2001 and the December 2001 NPRMs, which was understandable given that both addressed foreign events involving substantially similar vehicles and equipment and the statement in the preamble to the December 2001 NPRM that Subpart A would apply to both foreign defect reporting and early warning reporting. For example, on foreign defect reporting VW urged NHTSA “to refrain from attempting to assert jurisdiction over entities with no nexus to the United States.” Nissan had a similar comment. They made similar comments in response to the early warning NPRM (see 67 FR 45825-45828). Inasmuch as we addressed these and other comments related to applicability and the definition of manufacturer in the course of the final rule published on July 10, 2002, there is no need to repeat our response here. We incorporate that notice by reference. See 67 FR 45825-45834.

In the October 2001 NPRM, we proposed that “manufacturer” would include agents of manufacturers, through the proposed definitions of “safety recall” and “other safety campaign” (the proposed text is set out in point C below). Nissan and the Alliance specifically objected to the inclusion of “agent.” The Alliance asserted that even in the United States, case law does not establish a “bright line” test to determine in advance whether an entity, such as a dealer, is an “agent” of a vehicle manufacturer. The Alliance asserted that use of the term “agent” in a foreign business environment is “particularly problematic” because manufacturers in foreign countries “may have entities (such as independent distributorships) acting on their behalf for certain purposes, but not others.” We have carefully considered these comments. Noting that we did not use the term “agent” in the early warning reporting final rule, we have decided that we do not need it for purposes of foreign defect reporting. The definition of “manufacturer” in Section 579.4(c) provides adequate breadth.

Also, both the foreign defect reporting NPRM and the early warning reporting NPRM proposed transferring the provisions of Section 573.8 on notices, bulletins, and other communications to Part 579, the latter NPRM adding the limitation that its provisions applied to documents sent “in the United States.” The early warning reporting final rule adopted this proposal, Section 573.8 becoming Section 579.5(a). The limitation addresses AIAM's comment to the foreign defect reporting NPRM expressing concern that, without limiting it to documents sent in the United States, the provision could be construed to require submission of documents relating to foreign non-safety defect communications.

There were additional comments on the foreign defect reporting NPRM that were not raised in the early warning reporting rulemaking and thus not addressed in the July 10 rule. NADA suggested that “Section 579.3 should include language similar to that in 49 CFR 577.3 indicating that manufacturers should include all ‘stage’ manufacturers.” Section 577.3 applies in part to “manufacturers of incomplete motor vehicles,” and, in the case of vehicles manufactured in two or more stages, allows compliance with the obligation to notify and remedy noncompliances or safety-related defects by either the manufacturer of the incomplete vehicle or any subsequent manufacturer.

We have reviewed this comment and have concluded that vehicle safety concerns do not require that manufacturers of incomplete vehicles be included in the foreign defect reporting requirements with respect to those vehicles. On an average, NHTSA receives only 10 to 15 Part 573 reports each year that apply only to incomplete vehicles. Given the widely varying configurations of incomplete vehicles when completed, and given the relatively few such vehicles that are either exported from or imported into the United States, we believe that the number of foreign safety recalls or other safety campaigns on these unfinished vehicles will be even fewer than experienced in this country, and information about such recalls is likely to be of no real added value in detecting defect trends. Therefore, we have not adopted this suggestion.

In addition, NADA suggested that “registered importers subject to Part 573 and Part 577 defect and noncompliance reporting and notification requirements also should be subject to the Part 579 [foreign defect campaign] reporting requirements.” Parts 573 and 577 apply to registered importers (RIs) because 49 U.S.C. 30147 specifically requires RIs to notify and remedy safety-related defects and noncompliances in vehicles they import. However, because RIs are not original manufacturers exporting vehicles, they will not be conducting, or ordered to conduct, campaigns outside the United States. To the extent that there is a campaign conducted abroad covering vehicles that are identical or substantially similar to those that an RI imports, the campaign will usually be reported to NHTSA by the fabricating manufacturer or its representative. Although foreign campaigns might not be reported which cover vehicles that RIs are authorized to import that have no U.S. certified counterpart (see VCP column, Appendix A, Part 593), these vehicles are few in number and their overall impact upon safety is negligible. Thus, there is little reason to require RIs to report under Subpart B.

Section 30166(l) requires that a manufacturer of motor vehicles or motor vehicle equipment report to us when it has decided, or has been required by a foreign government, to conduct “a safety recall or other safety campaign” outside the United States that involves vehicles or equipment that are identical or substantially similar to products sold in the United States. As we noted in the NPRM, the TREAD Act does not define “safety recall or other safety campaign.” Further, NHTSA does not have comprehensive information about the laws of jurisdictions outside the United States relating to recalls of motor vehicles and motor vehicle equipment, and thus does not have detailed knowledge of the terminology or specific practices used in foreign countries to address potential safety problems. For example, some countries may not differentiate defects from noncompliances with safety standards or with safety guidelines. Accordingly, we cannot presume that a procedure abroad will follow that specified in 49 U.S.C. 30118-30120 and 49 CFR Part 573; e.g. , a notification to a government agency within 5 days after the manufacturer determines that its product contains a safety-related defect or noncompliance, followed by notification to owners, purchasers, and dealers containing an offer to remedy through repair, repurchase, or replacement.

In the United States, the elements of a “safety recall” are established by 49 U.S.C. 30118-30120. In general, these elements are (1) a determination by a manufacturer of motor vehicles or motor vehicle equipment, or by NHTSA, that a safety-related defect or noncompliance exists, (2) notification by the manufacturer to NHTSA within a reasonable time (defined in redesignated 49 CFR 573.6(b) to be within 5 business days of its determination), and (3) notification by the manufacturer to owners, purchasers, and dealers advising of the determination and potential safety consequences, and offering a free remedy.

We proposed to characterize a “safety recall” abroad as involving a determination by a manufacturer or one of its affiliates or subsidiaries (or a foreign government) that there is a problem with specific motor vehicles or motor vehicle equipment that relates to motor vehicle safety ( e.g. , a defect or noncompliance with a local safety standard or governmental guideline), followed by an offer by the manufacturer to provide remedial action. The offer could be made either by notifying the owner directly or through notifying dealers, who would then communicate with owners. Such safety recalls would have to be reported, whether or not the problem at issue would constitute a safety-related defect or noncompliance under U.S. law.

The TREAD Act also does not define “other safety campaign.” As discussed in the NPRM, we would distinguish an “other safety campaign” from a “safety recall” in two ways. First, a manufacturer would not necessarily make any acknowledgement, express or otherwise, that a safety problem existed. Second, the “campaign” would not necessarily involve the provision of a remedy. It could include such actions as an extended warranty or simply a warning to owners or dealers about a possible problem that could relate to safety. It would not include ad hoc good will repairs or replacements solely by local dealers for individual owners. Thus, a “safety campaign” would be defined as an action in which a manufacturer communicates with owners and/or dealers with respect to conditions under which a vehicle or equipment item should be operated, repaired, or replaced, that relate to safety. As used above, the words “relate to” would have the same broad meaning they do in 49 U.S.C. 30118(b) and (c). See, e.g. , Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992).

Taking these factors into consideration, we proposed that a “safety recall” be defined as:

Before turning to the terms “safety recall” and “other safety campaign,” we note that these proposed definitions included references to subsidiaries, affiliates, and agents of manufacturers. However, as finally defined in Section 579.4(c) and as discussed above, “manufacturer” includes subsidiaries and affiliates, and does not include agents. To avoid redundancy, and consistent with the approach taken with respect to early warning reporting, we are eliminating those references in the definitions of “safety recall” and “other safety campaign” adopted in this final rule, and simply use the term “manufacturer” as defined in Section 579.4(c).

There was little comment on the proposed definition of “safety recall.” Nissan noted with approval that the core elements of a safety recall established by the Vehicle Safety Act are present in the proposed definition of “safety recall.” However, one of these core elements is that the remedy be without charge. We are not familiar with the laws of other countries on safety recalls and do not wish to imply that provision of free remedy or reimbursement is a necessary component of a “safety recall” under the TREAD Act. We are clarifying this in the final definition of “safety recall,” which means:

Some commenters contended that the definition of “other safety campaign” should relate more closely to that of “safety recall.” Nissan contended that “Congress intended to capture only those ‘other safety campaigns’ that would be equivalent to a recall if conducted in the United States.” Noting NHTSA's comment (66 FR 51910) that a manufacturer “would not necessarily make any acknowledgement, express or otherwise, that a safety problem existed,” Nissan commented that this statement was inconsistent with the “determination” language of the statute. Nissan recommended that “other safety campaign” should be defined “to refer to any campaign that would meet the definition of a safety recall but, because of variations in foreign regulatory schemes, was not conducted as part of a formal remedy system.” This in essence was also the position of JPMA and of the Alliance, which suggested that “other safety campaign” be defined to mean “an offer by a manufacturer to owners of two or more vehicles or equipment in a foreign country to provide remedial action to address a defect that relates to motor vehicle safety, when that foreign country does not have a statutory or regulatory program requiring safety recalls.”

We believe that this is too narrow and misreads congressional intent. It would require a manufacturer to reach the conclusion that a defect exists and that that defect relates to motor vehicle safety. It has been our experience that manufacturers often conduct campaigns in the United States that relate to safety without acknowledging that a defect exists or that there is a safety relationship of a defect. In many cases, after becoming aware of such campaigns pursuant to 49 CFR 573.8 (2001) (now 49 CFR 579.5(a)), NHTSA has required manufacturers to conduct them as safety recalls and also has required manufacturers to broaden the scope of the campaigns. In our view, under the TREAD Act, NHTSA should be apprised of these campaigns in foreign countries at least to the extent we are aware of them in the United States. Moreover, we view the term “offer” as a narrower term than our proposed term “communication by a manufacturer.” Under our proposal, no safety defect need be identified even implicitly. Precautionary advice provided by a manufacturer on the conditions under which the vehicle is to be operated, repaired, or replaced may reflect the existence of a safety problem. In order to effectuate the purpose of the foreign defect reporting requirement, we have concluded that it is appropriate to adopt an encompassing definition of “other safety campaign” that goes beyond a “safety recall.”

Nissan, RMA, the Alliance, Bendix, AIAM, MEMA, Breed, and JPMA also asserted that the proposed definition of “other safety campaign” was too broad. Illustrative of this viewpoint was Nissan's comment that “other safety campaign” would cover a wide range of communications including many unrelated to the purpose of Section 3(a) of the TREAD Act. For example, “a general owner communication campaign providing consumers with tips on safety winter driving of a Nissan vehicle in Europe would be included * * * and thus reportable to NHTSA.” AIAM expressed concern that the term might be construed to include “routine maintenance instructions in an owner's manual, advertising relating to maintenance, or even seat-belt use campaign or anti-drunk driving materials.” MEMA commented that the final definition should exclude “materials such as promotional information, operational instructions or owner's manuals which accompany the vehicle or equipment at the time of first sale.” RMA would add a qualifier: “This definition does not include customer satisfaction, general maintenance, operating or safety information applicable to a broad range of vehicles or equipment and is not directed toward a particular identified safety issue or safety defect in such vehicles or equipment.”

These comments are similar to those we received on the definition we proposed in the early warning reporting rule for “Customer satisfaction campaign, consumer advisory, recall, or other activity involving the repair or replacement of motor vehicles or motor vehicle equipment.” We responded to these comments by modifying the definition adopted in the final rule to specifically exclude:

PC would replace the ending phrase “that relate to safety” with the phrase “as a result of a defect or potential defect.” PC would not leave to manufacturers the determination of whether an action is safety-related. However, substitution of the suggested phrase would still leave it to a manufacturer to decide whether the subject of its communications involved a “defect” or “potential defect.” Moreover, contrary to PC's comment, our definition does not leave the determination of a safety relationship to the manufacturer. A communication either relates to safety or it does not, regardless of the express words used. Therefore, we are not adopting this suggestion.

Section 30166(l)(2) requires each manufacturer to report to NHTSA after notification by “the government of a foreign country” that it must conduct a safety recall or other safety campaign. We proposed in Section 579.13(b) to also require manufacturers to report to NHTSA if they had been ordered by a political subdivision of a foreign country to conduct such a campaign.

RMA objected to including political subdivisions in the foreign reporting requirements. The commenter asserted that the TREAD Act does not require this, and that a political subdivision should not be included unless it has been given the specific authority to make determinations of recalls or other safety campaigns.

It is settled that a political subdivision of a country may be included within the term “foreign country.” In Burnet v. Chicago Portrait Co. , 285 U.S. 1 (1932), the Court recognized that the term “foreign country” “may mean a foreign government which has authority over a particular area or subject-matter, although not an international person but only a component part, or a political subdivision, of the larger international unit.” 285 U.S. 1, 5-6. The Court observed that “the term ‘foreign country’ is not a technical or artificial one, and the sense in which it is used in a statute must be determined by reference to the purpose of the particular legislation.” See also, Wisconsin Public Intervenor v. Mortier , 501 U.S. 597, 607 (1991).

This principle is equally applicable to the TREAD Act's foreign campaign reporting requirement. The purpose of this requirement is to alert NHTSA to the possibility of safety-related defects existing in foreign countries that might also exist in the United States. Some foreign countries may have political subdivisions that have authority to direct the manufacturer of a product to conduct a recall or safety campaign. In at least one foreign country, Canada, its Provinces, which are political subdivisions, may issue their own safety standards and enforce them. It is possible to envision a defect whose consequences only occur under conditions of use prevalent in one political subdivision of a foreign country and not another, and that the government of the locale where the condition is occurring might institute action rather than the central government. Thus, we are requiring reporting when any foreign governmental unit with authority to do so orders a manufacturer to conduct a safety recall or other safety campaign on substantially similar vehicles or equipment.

To remove any doubt that may exist as to the scope of foreign recall or campaign reporting, we are adopting definitions of “foreign country” and “foreign government” in Section 579.4(c). A “foreign country” means a country other than the United States. The term “foreign government” means the central government of a foreign country as well as the government of any political subdivision of that country.

The obligation to report foreign campaigns to NHTSA applies to recalls and campaigns involving vehicles or equipment items that are “identical or substantially similar to a motor vehicle or motor vehicle equipment offered for sale in the United States.” A parallel reporting obligation also exists under the early warning reporting provisions (Section 30166(m)(3)(C)), under which manufacturers of vehicles or equipment must report:

In the NPRM, we tentatively concluded that a definition of “identical” was not needed (66 FR 51907 at 910-911) because if there were good faith doubts whether a vehicle or equipment item is exactly “identical” to one that is sold in the United States, it is likely that the vehicle or equipment would be “substantially similar” to the U.S. vehicle or equipment, and therefore be covered by the reporting requirement in any case. We came to the same conclusion in the early warning NPRM and final rule, and did not adopt a definition of “identical.” No commenter specifically addressed this issue, and we have not defined “identical” in this final rule either.

In the October 2001 NPRM, we proposed that substantial similarity of motor vehicles be determined on the basis of meeting one or more of five criteria (66 FR 51917-51918; see 66 FR 51911-51913):

With the exception of the fifth criterion, we proposed the identical criteria for substantial similarity of vehicles in the early warning NPRM. 66 FR 66199-66200. On the basis of comments received on that NPRM, we adopted the following definition of “substantially similar” motor vehicles in the early warning final rule (49 CFR 579.4(d)):

It will be noted that we did not adopt the proposed criterion of “a counterpart of a vehicle sold or offered for sale in the United States.” For the reasons expressed in the early warning final rule preamble, we are also not adopting the vehicle counterpart criterion in the foreign defect reporting final rule. However, we are adopting each of the other criteria established by the early warning final rule. The first three of these criteria were adopted largely on the basis of the discussion in the October 2001 NPRM (66 FR 51907 at 51911-51913).

The first criterion in section 579.4(d) is that a vehicle will be substantially similar to a vehicle sold in Canada or certified to conform to the Canadian motor vehicle safety standards (CMVSS). To be sold in Canada, a vehicle has to be certified to conform to the CMVSS. Over 99 percent of gray market vehicles imported into the United States each year are certified to conform to the CMVSS. Generally, they have required only a few modifications of labels (and perhaps modifications to daytime running lamp systems) to meet the U.S. FMVSS. Because of the near identicality of the safety standards of the two countries, Canadian and American vehicles are substantially similar to each other.

The second criterion is that the vehicle is listed in the VSP or VSA columns of Appendix A to 49 CFR part 593. This is a list of gray market vehicles that NHTSA has found to be “substantially similar” under 49 U.S.C. 30141(a)(1)(A)(i) to U.S.”certified vehicles of the same make, model, and model year.

The Alliance, NADA, and Nissan questioned the applicability of the third criterion, commenting that it should not apply unless the vehicle that is manufactured in the United States for sale in a foreign country is also sold in the United States. However, none of these commenters gave a specific example of a vehicle manufactured in the United States for sale abroad that is not also sold in the United States. Also, the United States is not a low cost manufacturing environment that, based on economics, would be selected for assembly operations of such vehicles. Further, if a manufacturer produced such a vehicle, the vehicle would ordinarily contain a substantial number of parts manufactured in the United States and used in vehicles produced by that manufacturer, which could be involved in a foreign recall or other safety campaign. The comments have not persuaded us, and we are applying the third criterion to Subpart B.

This leaves us to consider the final criterion that we proposed for foreign defect campaign reporting:

This criterion reflected a components or system-based approach that is different from the final criterion of the early warning reporting rule, which is platform-based. As we noted in the preamble to the October 2001 NPRM, when a vehicle is the subject of a defect recall or safety campaign, the vehicle in its entirety is not defective; instead, a manufacturer will recall a vehicle because of a defect or problem in one or more of its components or systems that may or may not be used in other vehicles that the manufacturer builds. Therefore, we proposed to require a manufacturer to report a foreign campaign that the manufacturer conducts in which the defective component or system is substantially similar to the component or system that the manufacturer used on a vehicle which it sells in the U.S., even if the vehicle itself is on a different platform or would not be “substantially similar” under other criteria.

TMA supported this concept, commenting that substantial similarity for purposes of medium and heavy duty trucks should be defined around major component systems rather than the vehicle make and model. Thus, if medium and heavy duty trucks share identical component parts, they would be considered substantially similar.

However, there were a number of objections to this criterion. The Alliance objected for four principal reasons. First, the Alliance asserted that the proposal would be unworkable because it would require new, extensive recordkeeping systems to track worldwide the application of parts. In accord was AIAM, which commented that it knew of no company that tracks at the component or subcomponent level. VW also commented that it would be burdensome to maintain lists of utilization for the over 10,000 components per vehicle.

Second, in the Alliance's opinion, “the proposal will not produce much information of value that NHTSA would not obtain anyway.” The Alliance asserted that manufacturers “already have a routine practice of determining whether components involved in an actual safety recall in a foreign country might also have made their way into the U.S. market, and whether the same safety risk is presented in the U.S. market.”

The Alliance also argued that there was no definition of what a substantially similar component might be. It asked whether, for example, an air bag inflator would be considered “‘substantially similar’ to all other air bag inflators, because they perform the same intended function? Or must two air bag inflators have to contain the same lot number and be built at the same factory before they would be considered ‘substantially similar’? Or is the ‘substantial similarity’ found somewhere in between?”

In the Alliance's opinion, the proposal also appeared to require a vehicle manufacturer to report if it finds that the part involved in a foreign vehicle recall is installed on another manufacturer's vehicle in the United States. We do not understand this reasoning. Section 30166(l) clearly requires a manufacturer to report only campaigns that the manufacturer conducts, and not to report other manufacturer's campaigns, even if they involve substantially similar vehicles or equipment.

Harley-Davidson raised the scenario of equipment incorporated from outside suppliers that may have been subject to a recall that is not relevant to its application in a Harley-Davidson product, and of which it might be unaware. The company argued that this possibility may “place a burden on an ultimate vehicle manufacturer that cannot be met.” Harley-Davidson misunderstood the thrust of the foreign defect reporting requirement. Harley-Davidson must report on campaigns that Harley-Davidson itself (or its subsidiaries or affiliates) conducts in a foreign country. If Harley-Davidson determines that a campaign by one of its foreign equipment suppliers relates to equipment that Harley-Davidson uses on one of its foreign (or domestic) vehicles, and then determines to conduct a campaign, only at that point would the company be required to report its vehicle campaign to NHTSA.

Advocates commented that the component-based approach “unduly restricts reporting only to those situations involving ‘substantially similar’ defective components.” It “believes that Congress intended [Section 30166(l)] to cast a wider net and requires notification of foreign recalls and campaigns on ‘substantially similar’ vehicles even if the particular defective part is not ‘substantially similar.’ ”

We have carefully reviewed these comments and considered the possible burden adduced by manufacturers against the safety value of the information that might be provided were we to adopt the proposed fifth criterion. We have concluded that the simplest, most productive course is to adopt the same approach as we did in the early warning final rule: to dispense with a component-based approach and to consider vehicles substantially similar if they use the same vehicle platform (this takes into account our proposal and comments and is an outgrowth from them). In Section 579.4(c), we defined “platform” to mean:

The term “platform” is commonly used in conjunction with light vehicles. TMA pointed out in its comment to the early warning reporting NPRM that manufacturers of medium-heavy vehicles, buses, and trailers generally do not use the term “platform” to apply to their products. We observed (67 FR 45843) that

This means, under the uniform criteria that we are adopting, that vehicles that are substantially similar for early warning reporting purposes will also be substantially similar for reporting of foreign recalls and other safety campaigns (we are making an appropriate modification in the heading and first sentence of Section 579.4(d) to accomplish this). We believe that many of these vehicles will share identical or substantially similar components or systems which could be the subject of a foreign campaign.

Section 30166(l) also requires reports of foreign recalls and safety campaigns pertaining to substantially similar motor vehicle equipment. As we noted in the preamble to the NPRM, recalls and other safety campaigns involving problems with original equipment (OE) components or systems abroad, as here in the United States, are likely to be conducted by the manufacturer of the vehicle in which they were installed, although under certain circumstances an OE manufacturer is required to notify NHTSA of a defect or noncompliance in U.S. vehicles. See 49 CFR 573.5(e) and (f) (2001) and the discussion at 66 FR 51907 at 51913. Nevertheless, in those instances in which an OE manufacturer decides to conduct a foreign recall or safety campaign involving substantially similar equipment, it would have the duty to report that campaign to us. Similarly, if a foreign government notified an OE manufacturer that it was required to conduct a safety recall or other campaign, the OE manufacturer would be obligated to provide notice to us under Section 30166(l)(2). However, if all vehicle manufacturers using the item in question timely provide us with a report of a foreign safety recall or other safety campaign, we proposed that the OE component manufacturer would not be obligated to provide notice under Section 30166(l)(1) (66 FR 51907 at 51913).

Ordinarily, recalls and other safety campaigns involving problems with replacement equipment, abroad or in the United States, would be conducted by the replacement equipment manufacturer. Examples of replacement equipment recalls conducted in the United States are those involving defects and noncompliances in child restraint systems, lighting equipment, suspension components, brake hoses, and brake fluids.

We proposed, at 66 FR 51918, that motor vehicle equipment other than tires would be substantially similar:

We also stated that we would regard foreign child restraint systems as substantially similar (if not identical) to U.S. child restraint systems if they incorporated one or more parts that are used in U.S. models of child restraint systems, regardless of whether the restraints are designed for children of different sizes than those sold in the United States and regardless of whether they share the same model number or name. For example, if buckles, tether hooks, anchorages, or straps are common throughout a manufacturer's range of models, the child restraint systems would be substantially similar even though the buckles, hooks, anchorages, or straps might be used on a variety of add-on, backless, belt positioning, rear-facing, or booster seats produced by the manufacturer. However, a manufacturer would not have to report a foreign campaign on its child seats if the problem that led to the foreign campaign involved a component or part that was not used on any child restraint system sold or offered for sale in the United States.

JPMA commented that it had “three important reservations.” The first of these was based upon its belief that the proposed definition “would impute a reporting obligation on a manufacturer conducting a foreign recall if the component or part involved in the foreign recall was used on a child restraint sold in the United States by another manufacturer .” JPMA related that child restraint manufacturers frequently obtain the same component from a common supplier. “Because the manufacturer conducting a recall in this example would not necessarily know that one of its competitors was installing on a U.S. child restraint a component or part that was also installed on the recalled product in the foreign country, the recalling manufacturer cannot be expected to report that foreign recall to NHTSA.” To address this reservation, JPMA suggested language clarifying that the equipment that is sold in the United States must be manufactured by the same manufacturer that conducted the foreign campaign.

We do not understand the basis for this JPMA concern. Under the proposed and final rules, a manufacturer is required only to report its own foreign safety recalls and campaigns, and it is not obliged to report safety recalls by other manufacturers of products even if those products incorporate components common to its own recalled product. If the safety recall is conducted by the component manufacturer itself, the component manufacturer would have to notify NHTSA if the component is used in substantially similar vehicles or equipment sold in the United States. We have concluded that no amendment is required to clarify this aspect of the reporting obligation.

The second reservation was that “it is unclear whether NHTSA intended to limit the foreign recall reporting to instances in which the same component or system is used in both the foreign and the U.S. model, or whether * * * the foreign recall reporting [extends] to instances in which the component or system at issue is substantially similar to a component or system used in a U.S. child restraint model manufactured by that manufacturer.” JPMA explained that the regulatory text indicated the same component or system but that the preamble suggested that NHTSA may want reports on substantially similar components. In our preamble language at 66 FR 51914, we observed that “if * * * buckles * * * are common throughout a manufacturer's range of models, the child restraints would be substantially similar even though the buckles * * * might be used on a variety of add-on, backless, belt positioning, rear-racing or booster seats produced by the manufacturer.” JPMA then commented that all child restraint system buckles are to some extent substantially similar to other such buckles because they all perform the same function using similar designs and materials, but that there can be substantial differences in buckle performance based on hardware specifications, quality of the manufacturer, and interaction among the buckle components.

We do not consider the variations in buckle performance that JPMA mentioned as relevant as to whether a manufacturer ought to report. Foreign recalls or campaigns involving substantially similar child restraint systems must be reported to NHTSA; however, the reporting manufacturer may include its arguments as to why a defect would not exist in identical or substantially similar child restraint systems sold in the United States. This resolves JPMA's comment.

Finally, JPMA argued that the definition of “substantially similar equipment” proposed for purposes of foreign defect reporting could not be applied for early warning reporting purposes. We addressed early warning issues in the December 2001 early warning NPRM and modified the proposal in the early warning final rule. We note that for equipment, there is no “platform” comparable to that for motor vehicles. Therefore, a platform-based definition would not be workable.

The Alliance commented that, considering the separate definitions for original and replacement equipment, the proposed rule “appears to require reports of foreign recalls involving subcomponents used on dissimilar vehicles in the United States.” Because, in its opinion, this interpretation would make the definition of “substantially similar motor vehicle” unnecessary, the Alliance recommended restricting the definition to replacement equipment. However, we have not adopted the proposed criterion under which campaigns involving dissimilar vehicles with the same components would be reported, and the Alliance's comment is therefore moot.

Our proposed definition was almost identical to the one we adopted for substantially similar equipment in the early warning reporting final rule. Under that final rule, motor vehicle equipment is substantially similar:

Given our decision above to adopt the same definition for “substantially similar” motor vehicles for both the early warning reporting and foreign defect reporting rules, as discussed above, and for “substantially similar” tires, as discussed below, we have decided that we should adopt the same definition for “substantially similar” motor vehicle equipment. However, we have added a provision stating that a foreign campaign involving substantially similar equipment need not be reported under Subpart B if the component or system that gave rise to a safety recall or other safety campaign does not perform the same function in any vehicles or equipment sold or offered for sale in the United States. See Section 579.11(d)(2). This addresses comments by Bendix and MEMA. In Bendix's view, a similar or identical product in other countries many have entirely different failure modes with different impacts on safety. MEMA asserted that any definition of substantially similar equipment should also include an application-specific reference.

Finally, we note that Delphi commented that “suppliers of equipment should also be responsible for reporting recalls and campaigns of their equipment in a foreign country when the OEM does not sell the vehicle it is used on in the United States but where the same equipment or component that caused the foreign recall or campaign is used in another application that is sold in the US.” We do not believe that the language suggested by Delphi needs to be added. To the extent that any equipment (original or replacement) covered by a recall in a foreign country is sold as replacement equipment in the United States, reporting is already required under our definition. The Delphi comment would require reports of foreign campaigns on equipment sold in the United States but used in a different application than in the foreign country. It is likely that in most cases any such original equipment would also be sold in the United States as replacement equipment, and thus covered by the rule. Requiring reporting in those rare circumstances where that is not the case would create extensive burdens without yielding much relevant information.

In the NPRM, we proposed that tires would be substantially similar if they have “the same model name and size designation, or if they are identical except for the model name.” This was identical to the definition we proposed two months later in the early warning NPRM. However, the early warning final rule defines a substantially similar tire differently:

The definition we adopted in the early warning final rule was based upon comments by RMA. In its comments on the NPRM, RMA asserted that there should be a common definition for both rules. For a discussion of these issues, see the preamble to the early warning rule (67 FR 45822 at 844-845). We find these reasons equally applicable to this final rule, and for this reason, we are adopting the same definition previously established at Section 579.4(d) for early warning reporting.

Proposed section 579.13 contained five paragraphs referring to reporting responsibilities relating to foreign campaigns. Paragraphs (a) and (b) proposed the time frames within which a manufacturer must submit a report to NHTSA. Paragraph (c) proposed to establish a due date for reports pertaining to foreign campaigns conducted before the effective date of the final rule. Paragraph (d) specified certain exclusions from reporting. Finally, paragraph (e) proposed to require manufacturers to provide a yearly list of substantially similar vehicles. These subjects are now addressed in Section 579.11.

Proposed paragraph (a) would require a manufacturer to submit a report within 5 working days of its determination to conduct a foreign safety recall or other safety campaign covering vehicles or equipment substantially similar to a vehicle or equipment offered for sale or sold in the United States. Paragraph (b), as proposed, would require a manufacturer to submit a report, also within 5 working days, after it receives notification that a foreign government (or a political subdivision of that government) has determined that a safety recall or other safety campaign must be conducted on a substantially similar vehicles or equipment.

Comments were submitted regarding the sufficiency of a 5-working day period for submitting information, the character of the determination by the foreign government, and the appropriateness of including political subdivisions as a component of a foreign government. (We have addressed the last issue earlier in this notice.)

The principal concern of commenters was whether 5 working days afforded sufficient time to file reports with NHTSA.

Our proposal was based upon the specific language of Section 30166(l), which requires that manufacturers notify NHTSA “not later than 5 working days after determining to conduct a safety recall or other safety campaign in a foreign country” on substantially similar vehicles and equipment, or after receiving notification from a foreign government that such a campaign must be conducted. Congress did not provide direction on the meaning or implementation of the 5 working days period for submission of these reports. In the NPRM, we assumed that this 5-day period was based upon the time period in regulations NHTSA had adopted to implement the defect and noncompliance notification provisions of the Vehicle Safety Act. Section 30119(c)(2) of the Vehicle Safety Act states in pertinent part that notification to the Secretary of such defects or noncompliances under Section 30118 “shall be given within a reasonable time after the manufacturer first decides that a safety-related defect or noncompliance exists.” After notice and comment, we adopted a regulation specifying that “not more than 5 working days” is a “reasonable time” for notifying NHTSA of decisions that will lead to domestic recall campaigns (49 CFR 573.6(b) (2002)).

Based on our tentative reading of the TREAD Act, we proposed that the time period for reporting foreign safety recalls or other safety campaigns be 5 working days from the date that the manufacturer, including one of its subsidiaries or affiliates, decides to conduct, or is notified by a foreign government (including a foreign governmental unit) that it must conduct, the recall or other campaign. As we noted in the NPRM, “the 5-day period in Section 30166(l) is very achievable in those cases in which the decision to conduct the recall or other campaign is made by, or with the concurrence of, the manufacturer's headquarters and there is little doubt that the foreign vehicles or equipment in question are identical or substantially similar to vehicles offered for sale in the U.S.” We thought it reasonable to assume that, in most cases, local subsidiaries or affiliates of multinational manufacturers are not authorized to decide to conduct safety recalls or other safety campaigns without the concurrence of the corporate headquarters, or at least without contemporaneously advising such headquarters of the action. Thus, the headquarters would have at least basic information on the recall or campaign.

As we further noted in the NPRM, as a practical matter, we would expect few difficulties when a foreign government provides notification of its determination that a recall or other campaign must be conducted (there have been very few recalls ordered by foreign governments). We would expect that there would be communications between the foreign government and the manufacturer's headquarters or its local subsidiary or affiliate before a government-directed recall, so that any formal notification would not be a complete surprise to the manufacturer. In any event, in our view, the notification would be in the form of a written communication to the manufacturer or its local entity. The addressee would be deemed to “receive” the notification when it is delivered by mail, facsimile or other mechanism to the addressee. This document could readily be forwarded to a manufacturer's headquarters and then to NHTSA.

We recognized that it may be difficult for a local subsidiary or affiliate to know whether the vehicles or equipment covered by the recall or other campaign in its country are substantially similar to products offered for sale in the United States. However, we expected that the parent corporation could readily address this question. Manufacturers could assure that all recalls and campaigns in foreign countries be brought to the attention of appropriate persons at the company's headquarters, who would be able to decide promptly whether they must be reported to NHTSA. In addition, the annual list of similar vehicles to be submitted by the manufacturer to NHTSA pursuant to section 579.11(e) could be sent to all foreign subsidiaries and affiliates of a vehicle manufacturer, which would assist them to know whether a recall or other campaign needed to be reported.

There were a number of comments on the meaning of “5 working days.” VW, Delphi, and Bendix recommended that “5 working days” be defined as 5 business days in the foreign country involved in the report at issue. The Alliance would interpret the term to mean the days that a manufacturer conducts business, and would not include days in which the manufacturer might be closed for “scheduled factory and headquarters shutdowns (which occur with regularity in foreign markets for a period of a week or more at a time).” VW recommended that there should be a maximum number of U.S. days encompassed in the phrase. Comments by AIAM and TMA were much the same, and quantified the maximum number of days as 15 U.S. business days.

We do not believe that the reporting will involve a complex sequences of events, and our experience and the comments did not show otherwise. The statute addresses identical or substantially similar vehicles and equipment in at least one foreign country and the United States. To satisfy reporting obligations, ordinarily offices in no more than one or two foreign countries would be involved.

Reports of foreign recalls and campaigns that the agency has received to date pursuant to 49 U.S.C. 30166(l) reflect a variety of practices, as the following examples show. Where a multinational manufacturer has its world headquarters in the United States, reports have been submitted by the U.S.-based entity stating that the company and its various subsidiaries and affiliates were conducting field actions in markets other than the United States. In addition, a report has been submitted by the North American operations arm of a U.S.-based company informing the agency that a foreign subsidiary had notified a foreign government of a particular matter. Where a multinational manufacturer is based in a foreign country, ordinarily the U.S. subsidiary submits the report. On some, the U.S. subsidiary submitted a report on behalf of the foreign parent. On others, the U.S. subsidiary simply submitted a report. One foreign company reported on the U.S. subsidiary's letterhead. With regard to the lines of communications, in some cases, the foreign parent communicated directly to authorities in countries other than the United States. In others, the foreign subsidiary ( e.g., in Australia) provided information that there has been a campaign. In yet others, the report simply stated that the manufacturer was submitting information on a particular campaign, and identified the country and vehicles involved. In one, the manufacturer referred to the factory as having provided information. Some identified a manufacturer, which often is identified as the foreign parent, but other times is a subsidiary in a foreign country. One reported that its foreign licensee planned to recall vehicles assembled by the licensee. Although the examples above reflect a variety of practices, each of them is straightforward.

The decision to conduct a recall or other safety campaign ordinarily would be made by or at least approved by the corporate parent. For example, if a Ford or General Motors product were involved, the decision to conduct the recall or campaign ordinarily would be made or at least approved in the United States. If a Toyota, BMW, or Hyundai product were involved, the decision ordinarily would be made or approved in a foreign corporate headquarters.

We recognize that, in theory, recalls or campaigns ordered by a foreign government could raise additional concerns ( e.g., the possibility of delay in notifying the corporate headquarters and the possible need for translation of the recall order). However, such government-ordered recalls are very rare, and translation is not an issue since, as noted by RMA, only three countries other than the United States have statutes authorizing the government to recall vehicles or equipment, and all of these are English-speaking (Canada, the United Kingdom, and Australia). Also, the statutory obligation to report under 49 U.S.C. 30166(l) had been in place for over one year by the time that the comment period on the NPRM closed, and the comments did not demonstrate any insurmountable problems.

The statute establishes a deadline that counts working days. We believe that it is appropriate to base this period on the general business practice of the involved offices of each individual manufacturer, including its relevant subsidiaries or affiliates. As discussed above, this could include offices in the country where the recall or campaign is directed by the government, the multinational headquarters, and the U.S. subsidiary, if any. In some countries, general business practice may be a matter of law; in others, a matter of custom, but it is the framework within which all manufacturers conduct their business operations. By “general business practice,” we mean the days that the corporate offices of a company conduct business (in the United States, generally Monday through Friday) as contrasted with the days that its plants are in operation (in the United States, this often includes Saturday). For example, on a certain day, a factory may be closed for inventory but its corporate office remains open; that day would be a “working” day. We have not adopted a maximum reporting date of 15 U.S. working days because working days may be determined on the basis of the general business practices of countries other than the United States, and it is possible that “5 working days” in a foreign country, under some circumstances such as corporate shutdown for an annual summer vacation, could exceed 15 U.S. working days.

MEMA commented that the 5-day period should begin on the date that the manufacturer determines that the vehicle or equipment recalled is substantially similar to a U.S. product rather than the date the manufacturer or government determines that a recall is required. This comment is posited on the presumed difficulty of identifying substantially similar vehicles and equipment in the United States at the time a foreign campaign is determined to be conducted. However, the statute is clear that 5 working days is counted from the day of a manufacturer's determination or its receipt of notice from a foreign government. We believe that MEMA's suggestion would introduce too much potential delay into the process.

Accordingly, the final rule states that, where a determination is made by a manufacturer, the 5-working day period “is determined by reference to the general business practice of the office in which such determination is made, and to the office reporting to NHTSA (Section 579.11(a)). Where a determination is made by a foreign government, the 5-working day period “is determined by reference to the business practice of the office where the manufacturer receives such notification, the manufacturer's international headquarters office (if involved), and the office reporting to NHTSA (Section 579.11(b)).

In determining the 5-working day period, the particular working days of the offices involved in individual reports would be considered in toto. The rule does not provide separate 5-working day periods to each office within the multinational manufacturer that is involved in the determination and reporting process. The following hypothetical illustrates how working days are computed. It assumes that a vehicle manufacturer's world headquarters is in Germany, with subsidiaries in Asia and the United States. The Asian subsidiary receives a governmental notice on Thursday, September 1, that it must conduct a safety recall of certain vehicles. That day does not count in the computation of the relevant period, particularly in view of the fact that the notice might not be received until late in the day. On Friday, September 2, the subsidiary reviews the notice, and perhaps translates it into German (Day 1). The subsidiary observes a Saturday and Sunday weekend, and Monday is a national and corporate holiday. On Tuesday, September 6, the subsidiary faxes the original and the translation to Germany (Day 2). On Wednesday, September 7, the German headquarters confirms that the vehicles are substantially similar to those sold in the United States, and that the recall must be reported to NHTSA (Day 3). The headquarters office is closed on Thursday and Friday, as well as the weekend. On Monday, September 12, the headquarters office prepares the report and an English-language translation of the notice (Day 4). Headquarters faxes the report, notice, and translation to its U.S. subsidiary on Tuesday, September 13, but the subsidiary is closed that day. On Wednesday, September 14, the U.S. subsidiary would be required to submit the materials to NHTSA (the 5th working day).

We proposed that a manufacturer report to NHTSA whenever it has been notified that the government of a foreign country has determined that it should or must conduct a safety recall or other safety campaign involving covered vehicles or equipment, whether or not the subject of the campaign would be a safety-related defect or noncompliance under the laws of the United States. For example, if the foreign government moves to prohibit further sales of a vehicle for reasons relating to motor vehicle safety, we would consider that action to be the equivalent of a “safety campaign.”

The Alliance and MEMA commented that the notification by a foreign government should be one that is “written.” In the NPRM, we had assumed, as noted above, that such notification would be in written form, but we did not specify it in the regulatory text. We are clarifying this in the final rule, and the text of the final rule clarifies that reporting is only required with respect to written notifications.

There may be occasions when the manufacturer will contest a foreign government's determination or order, be it proposed or final. In the United States, NHTSA may make an initial decision that a defect or noncompliance exists pursuant to 49 U.S.C. 30118(a), affording the manufacturer and public an opportunity to present data, views, and arguments. Then NHTSA may make a final decision that a defect or noncompliance exists and order a recall under 49 U.S.C. 30118(b). Such an order can be challenged in court.

We are not fully conversant with the administrative and judicial practices of countries other than the United States, and we asked for comments on the vehicle and equipment safety recall laws and practices of other countries as they might relate to implementation of reporting of foreign governmental defect determinations. RMA advised that “only the United States, Canada, the United Kingdom, and Australia have statutes authorizing the federal (or national) government to recall motor vehicles or motor vehicle equipment in use in those countries).” However, RMA did not discuss these statutes in detail, and there were no other comments on possibly relevant laws or regulations of other countries.

The Alliance did not provide any information on countries with statutes authorizing recalls or on particular difficulties that its members would likely encounter with respect to them. Instead, the Alliance asserted that NHTSA's lack of familiarity with the practices of other countries justified excluding any determination other than a final one. It commented that a term such as a “conditional” determination might be meaningful when used in the context of some of NHTSA's regulatory proceedings but much less clear in other unspecified countries. It asked “is a foreign government's expression of interest in a potential defect a ‘conditional’ determination that a recall is required? At what point during a pending investigation does official curiosity become a ‘conditional’ determination?” In our view, an “expression of interest” or “curiosity” is nothing more than that. However, a conditional determination reflects at least some belief on the part of the foreign government that a recall should be conducted, and thus is of interest to NHTSA, even if a further step is needed prior to a directive that a recall take place.

RMA would apply the criterion that “the determination would be considered a safety-related defect under U.S. law,” and that only final determinations should be reported. At the present time, we do not expect foreign law to mirror the Vehicle Safety Act with respect to such determinations, and we do not know whether elements of U.S. law would be met. The RMA formulation could result in non-reporting where a foreign recall was based on a somewhat different standard than governs under U.S. law. Also, this could result in extensive delays before a resolution of whether a condition was a defect under foreign law. Even in the United States, some cases have remained unresolved for an extended period of time following an initial decision under Section 30118(a). Further, RMA's criterion would not encompass determinations covering “other safety campaigns,” which could be ordered in the absence of a defect determination. Information about interim determinations or safety campaigns where a defect has not explicitly been found to exist will enhance NHTSA's ability to give earlier consideration to potential defects in vehicles operated abroad that might also exist in substantially similar vehicles in the United States. We therefore are adopting the proposal to require reporting of all determinations by foreign governmental entities, whether proposed, interim, or final, that a recall or other safety campaign must be conducted and regardless of whether there has been a finding of a safety-related defect.

Manufacturers have been required to report determinations or notifications of applicable foreign recalls and other safety campaigns to us since November 1, 2000, the effective date of Section 30166(l). Some have done so. In order to be certain that we are aware of all such determinations and notifications, we proposed that manufacturers provide us with reports of all relevant determinations and notifications between November 1, 2000, and the effective date of the final rule, if they had not already been reported to us. This one-time historical reporting would assure that we receive information on recalls and campaigns that might not previously have been reported to us because of uncertainty whether such campaigns covered substantially similar vehicles and equipment within the meaning specified in the final rule. We proposed that reports would be due within 30 days of the effective date of the final rule.

We had no comments on this proposal, and we are adopting it as section 579.11(c). However, to avoid unnecessary burdens and duplicative reporting, we are including a provision stating that, if a foreign recall or campaign has already been reported to NHTSA, it need not be resubmitted under section 579.11(c) if the original report identified the model(s) and model year(s) of the products that were the subject of the foreign recall or campaign, identified the identical or substantially similar U.S. products, and identified the defect or other condition that led to the foreign recall or campaign.

In the NPRM, we recognized that manufacturers may conduct identical recalls in the U.S. and abroad. We proposed that a manufacturer would not be required to report foreign recalls or campaigns to us under this rule if it had filed a Part 573 report covering the same safety defect or noncompliance in substantially similar products offered for sale or in use in the United States, provided that the manufacturer's remedy in the foreign campaign is identical to that provided in the U.S. campaign, and the scope of the foreign campaign is not broader than that of the U.S. campaign.

The Alliance commented that it was “inappropriate and unnecessary to condition the availability of this exemption on the motivations of the manufacturer to undertake the campaigns, which may well be different from country to country.” For example, Section 30118 motivates a manufacturer files a Part 573 report but that would not be the motivation for a parallel campaign outside the United States. In its view, “the objective fact that a foreign campaign is being undertaken” should be sufficient. We believe the Alliance is reading this phrase in a manner different than we intended. In our view, the phrase “for the same or substantially similar reasons” means that a manufacturer is conducting a foreign campaign for the same or substantially reasons relating to motor vehicle safety that it filed a Part 573 report. We are therefore modifying the phrase in section 579.11(d)(1) of the final rule to read “for the same or substantially similar reasons relating to motor vehicle safety.”

In addition, the Alliance expressed concern “about the limitation of the exemption to campaigns in which the remedies are identical.” For example:

On reflection, we have decided that the exemption should apply even if the remedies in foreign countries and the United States are not identical. Pursuant to 49 U.S.C. 30120(a)(1), a manufacturer may elect the remedy for a defect or noncompliance. In general, NHTSA does not question the appropriateness of a remedy selected by a manufacturer unless there is some reason to believe that it is not adequate. If we do open an investigation into the adequacy of a remedy in the United States, we can and will obtain any relevant information about foreign remedies.

The Alliance was also concerned about limiting the exemption to campaigns in which the “scope” of the foreign campaign “is identical to the scope of the U.S. campaign.” In its view, if “scope” means the population of potentially affected vehicles, then the exemption will become meaningless, as vehicle models abroad will differ from those in the United States. According to the Alliance, the “scope” of the campaign should not matter “as long as NHTSA has received a Part 573 report about the same alleged defect on U.S. vehicles with a proposed scope that is suitable and appropriate for the U.S. market.”

The Alliance misquoted the regulatory text. The exemption applies not if the scope is “identical,” but if “the scope of the foreign recall or campaign is not broader than the scope of the recall campaign in the United States.” By “scope,” we meant the subject matter of the recall and the time frame in which the recalled vehicles were manufactured. For example, if both the U.S. and foreign campaigns related to the same defect in a hydraulic brake system, the scope may be identical. But if the foreign recall included a recall of hydraulic brake hoses used in vehicles with the brake system that was not included in the U.S. recall, the scope would not be identical and the campaign would have to be reported. Similarly, if the foreign recall covered three model years and the U.S. recall covered only one of those years, the foreign recall would have to be reported. Of course, the manufacturer would have the opportunity to provide an explanation of why the smaller scope of the U.S. recall was appropriate.

The Alliance recommended expanding the exemption to cover circumstances in which a foreign safety recall is properly and timely reported to NHTSA, and is later expanded by the manufacturer to other foreign countries. In its view, as long as NHTSA has been informed of the first foreign recall, “and has the necessary information to make a judgment about whether a similar campaign is warranted in the United States, it should not need to receive redundant reports when that campaign is extended to other foreign countries.” We disagree. The decision to broaden the scope of a foreign recall and extend it to other foreign countries may be based upon factors that differ from those which resulted in the initial foreign campaign reported to NHTSA, such as the climate or road conditions in which a vehicle is operated. Given the wide variety of vehicle operating environments in the United States, information on the extension of campaigns could prove of assistance in fulfilling the purpose of the TREAD Act of earlier detection of potential safety defects. We therefore have not adopted a new exemption.

As noted above, we are exempting from reporting any safety campaign involving substantially similar motor vehicle equipment that does not perform the same function in vehicles or equipment sold or offered for sale in the United States. See Section 579.11(d)(2).

In addition, we are not requiring manufacturers to report to us a foreign safety recall (or other safety campaign) whose sole subject is a label affixed to a vehicle or equipment. See Section 579.11(d)(3). Some foreign recalls involve failure to follow requirements for labels in a foreign language that are not germane. Even if the label is in English, the governmental requirement in the foreign country is likely to be different from the applicable U.S. requirements. Moreover, the agency has often judged errors in labels to be inconsequential to safety when manufacturers reporting such noncompliances under Part 573 have petitioned for determinations under Part 556 that they be relieved of further notification and remedy obligations. For these reasons, we have concluded that reports of foreign recalls or campaigns involving only labels are not likely to lead to discovery of defects or noncompliances in identical or substantially similar U.S. vehicles and equipment that require remedial action.

TMA noted that differences in various regions worldwide could influence recalls that might not be necessary under the Vehicle Safety Act. TMA would report these foreign recalls, but commented that it would be appropriate for a manufacturer to provide its views of why such recalls should not be conducted in the United States. Nothing in today's final rule requires or prohibits such an addition to a report, but if a manufacturer chooses to amplify a report, its views should follow the information that the rule requires in the report.

Harley-Davidson pointed out that the European Union (EU) has mandated a uniform two-year warranty on new vehicles, and that manufacturers may conduct campaigns in order to honor the warranties. In its opinion, such campaigns ought to be excluded from reporting. We do not agree; if an EU warranty campaign meets the definition of “safety recall” or “other safety campaign,” it must be reported.

In commenting on the early warning reporting ANPRM, the Alliance suggested that each vehicle manufacturer submit to NHTSA annually, at the beginning of each model year, a list of the vehicles that the manufacturer intends to sell abroad during that year that the manufacturer believes are “substantially similar” to vehicles sold or planned for sale in the United States. We thought that such a list could help both the manufacturers and NHTSA in determining whether foreign recalls and other campaigns need to be reported. Accordingly, we proposed that manufacturers identify, not later than November 1 of each year, any vehicles they plan to sell abroad in the next year that they believe to be substantially similar to vehicles sold or offered for sale in the United States, or planned for sale in the United States during the next year.

AIAM commented in the context of the component-based proposed criterion of the definition of “substantially similar” motor vehicle, and its comment is moot since we are adopting a platform-based criterion. Harley-Davidson asserted that it does not know as of each November 1 all the motorcycles that will be substantially similar to its U.S. models in the 12 months of the next calendar year, as its model year ends on June 30 of any given year, and decisions regarding models for the second half of that calendar year are not made until January of that year. The regulation does not require that a manufacturer provide a definitive and final list, only an identification of the vehicles it “plans” to sell in the coming year as of November 1. If its plans change thereafter, a manufacturer would not be required to amend the list.

Given the lack of comments by other manufacturers, there appears to be no problem in providing NHTSA with an annual list of vehicles as of November 1. Generally, manufacturers will have made advance announcements of their plans for the following calendar year by that date. If there are confidentiality concerns, manufacturers may request confidential treatment pursuant to 49 CFR part 512.

Accordingly, we are adopting our proposal. See Section 579.11(e). We are adding the requirement that the manufacturer also identify the vehicle sold in the United States that is identical or substantially similar to the identified vehicle being sold in a foreign country.

Under the NPRM, proposed Section 579.14 (adopted as Section 579.12) contained two subsections, the first specifying the contents of the report to NHTSA and the second dealing with the reporting of information that is not available at the time of the initial report.

When a manufacturer of motor vehicles or motor vehicle equipment decides to conduct a notification and remedy campaign in the United States to address a safety-related defect or a noncompliance with a FMVSS, or is ordered to do so by NHTSA, it must furnish information to the agency as specified in 49 CFR part 573, “Defect and noncompliance reports.” The contents of the required notification are set out in Section 573.6(c)(1-11) (formerly Section 573.5(c)(1-11)). These include the manufacturer's name (paragraph (c)(1)), identification of the vehicles or items of motor vehicle equipment potentially containing the defect or noncompliance, including a description of the manufacturer's basis for its determination of the recall population and a description of how the vehicles or items of equipment to be recalled differ from similar vehicles or items of equipment that the manufacturer has not included in the recall (paragraph (c)(2)), the supplier of the defective or noncomplying equipment where applicable (paragraph (c)(2)(iv)), the total number of vehicles or items of equipment potentially containing the defect or noncompliance (paragraph (c)(3)), the percentage of vehicles that actually contain the defect or noncompliance (paragraph (c)(4)), a description of the defect or noncompliance (paragraph (c)(5)), in the case of a defect, a chronology of principal events that were the basis for the determination including summaries of field or service reports, warranty claims, and the like (paragraph (c)(6)), in the case of a noncompliance, the test results or other basis upon which the manufacturer made its determination (paragraph (c)(7)).

We proposed that this same information be provided in the manufacturer's notification to NHTSA of a safety recall or other safety campaign in a foreign country. In addition, the manufacturer would have to identify the foreign country, state whether the determination was made by the manufacturer or by a foreign government, state the date of the determination, state whether the action in question was a safety recall or other safety campaign, and identify with specificity the motor vehicles or motor vehicle equipment sold or offered for sale in the United States that are identical or substantially similar to those covered by the foreign campaign. Manufacturers who are reporting campaigns ordered by a foreign government would also be required to furnish copies of the determination by the foreign government in the original language and translated into English (if necessary).

We recognized that this is more information than is currently required in connection with some campaigns in the United States that are not safety recalls under the Vehicle Safety Act. Under former 49 CFR 573.8 (now section 579.5(a)), manufacturers must merely submit the documents that they send to more than one owner or dealer regarding vehicle and equipment malfunctions, and they need not provide all the information set out in 49 CFR 573.6(c). We proposed to require more complete information, in part, because of the difficulty in distinguishing between “safety recalls” and “other safety campaigns” in foreign countries. We asked for comments on whether and how the level of detail can be reduced for certain type of foreign safety campaigns.

The Alliance, Nissan, and MEMA each commented that it would be burdensome and unnecessary to provide all the information proposed to be submitted.

With respect to the seven items of information we proposed to require based on former section 573.5(c), Nissan, MEMA, and AIAM recommended limiting these to paragraphs (c)(1)(identification of manufacturer), (c)(2)(identification of vehicle or equipment), and (c)(5) (description of the defect). Each suggested that NHTSA could request further information if the agency desired it. These commenters contended that some of the seven items of information may not have been developed, and that their collection would be time-consuming. RMA would limit reports to only information covered by former section 573.8 (notices, bulletins, and other communications).

After reviewing these comments, we have decided that it is not necessary for purposes of foreign recall and campaign reporting to require information specified by 49 CFR 573.6 paragraphs (c)(4) (the percentage of vehicles or equipment items estimated to contain the defect), (c)(6)(in the case of a defect, a chronology of principal events that were the basis for the determination including summaries of field or service reports, warranty claims, and the like), and (c)(7) (in the case of a noncompliance, the test results or other basis upon which the manufacturer made its determination). By not requiring these three items of information, the burden upon manufacturers will be lessened. However, in addition to those that the manufacturers did not object to, we will adopt our proposal to require the information specified in paragraph (c)(3) (the total number of vehicles or items of equipment covered by the foreign campaign). This information has been provided in numerous reports of foreign recalls received to date, and its collection is unlikely to be burdensome. As for RMA's comment, as we stated above, we believe it is important to require more complete information than is required for domestic actions that are not safety recalls, in part because of the difficulty in distinguishing between “safety recalls” and “other safety campaigns” in foreign countries.

No commenter addressed the other information regarding foreign campaigns that we proposed to require, and we are adopting those requirements in the final rule. We are also adding the requirements that the report itself be dated, and that, in the case of a recall, it describe the manufacturer's program for remedying the defect or noncompliance, information presently required by section 573.6(c)(8) for U.S. recalls.

As discussed above, foreign recalls and other safety campaigns must be reported within 5 working days. We recognized that some of the required information might not be available within 5 working days. Consistent with redesignated section 573.6(b), we proposed that such information be submitted as it becomes available. There were no comments on this aspect of our proposal, and we are adopting it. See section 579.12(b).

In its defect and noncompliance reporting regulations, the agency has addressed the question of who may file a defect or noncompliance report related to an imported item. Under 49 CFR 573.3(b), in the case of vehicles or equipment imported into the United States, a defect or noncompliance report may be filed by either the fabricating manufacturer or the importer of the vehicle or equipment. Defect and noncompliance reports covering vehicles manufactured outside of the United States have generally been submitted by the importer of the vehicles, which is usually a subsidiary of a foreign parent corporation ( e.g. , defects in vehicles made in Japan by Honda Motor Co. Ltd. are reported by American Honda Motor Co., Inc., even if the vehicle was certified by Honda Motor Co. Ltd).

We proposed in section 579.15 to apply the reporting requirements for foreign campaigns in the same manner as we currently utilize for reporting noncompliance and defect determinations to NHTSA under part 573. That is to say, the report might be filed by either the fabricating manufacturer or by the importer of the vehicle that is identical or substantially similar to that covered by the foreign recall or other safety campaign. The Alliance recommended that the final rule “contain a provision authorizing manufacturers engaged in joint ventures or other similar enterprises to allocate between or among themselves which entity will assume responsibility for reporting to NHTSA.” The Alliance asserted that allocation of responsibility would be similar to that between component suppliers and OE manufacturers in part 573.

In the early warning NPRM, we also proposed that fabricating manufacturers or importers could file early warning reports. However, in the final rule, we expanded these entities and adopted section 579.3(b), which specifies that:

We are adopting largely the same reporting provision for manufacturers who report foreign campaigns. We believe that this is responsive to the Alliance's recommendation. In any event, we note that historically, Alliance members' U.S. headquarters (if the multinational headquarters is in the U.S.) or U.S. subsidiary (if the multinational headquarters is in a foreign country) have submitted reports under section 30166(l) and that this has sufficed. However, rather than adopting a separate provision in Subpart B, we are amending section 579.3 to redesignate paragraphs (b) and (c) as paragraphs (c) and (d) respectively, and to adopt a new paragraph (b) which reads:

It should be noted that this differs from the early warning reporting paragraph in that a report may be filed by a “subsidiary,” not just a “United States subsidiary.” This means that any of the named entities, including a foreign subsidiary who makes a determination or receives a notice from a foreign government, may file a report, whether it is located in the United States or in a foreign country. As we noted in the NPRM, a multinational corporation must ensure that all relevant campaign information throughout the world is made available to whatever entity makes those reports so that its designated entity timely provides the information to NHTSA. Thus, it would be a violation of law for a foreign manufacturer to designate its U.S. importer as its reporting entity, and then fail to assure that it is provided with information about relevant foreign recalls and campaigns. All manufacturers will have to adopt and implement practices to assure the proper flow of information regarding relevant foreign recalls and campaigns.

There was one further reporting issue. Under proposed section 579.13(a), after a manufacturer determines to conduct a foreign safety campaign “covering” substantially similar motor vehicles and equipment, the manufacturer “of the vehicle or equipment covered by the recall or other campaign” would report the determination to NHTSA. Johnson found it unclear whether “the manufacturer who makes [the recall] determination is the one who needs to make the report.” Johnson noted that “in the case of original equipment or replacement equipment, the equipment manufacturer can make the determination of defect. In those cases, the equipment manufacturer should be the person who makes the report required under section 579.13(a).” It argued that “imposing an obligation on the manufacturer ‘covered by’ the recall is ambiguous, particularly in a case where a recall by a vehicle manufacturer is undertaken as a result of a defect discovered by the vehicle manufacturer in an original component made by an equipment manufacturer.” It would clarify that the manufacturer making the report is the manufacturer making the determination to recall.

The issue of alternative reporting responsibilities has been addressed with respect to notification of defects and noncompliances that lead to domestic recall campaigns in section 573.3(e). This paragraph permits either a vehicle manufacturer or an OE manufacturer to notify NHTSA if the OE manufacturer's defective equipment is used only in the vehicles of that manufacturer, and the reporting manufacturer to conduct the remedial campaign. This paragraph appears to be the basis of Johnson's comment.

We did not address the issue of alternative reporting responsibilities in the context of foreign campaigns in the NPRM. Under our proposed fifth criterion, substantially similar vehicles would be those sharing the component that led to the safety recall or campaign. Thus, it did not seem likely that the foreign manufacturer of the defective OE would be the person determining to conduct a safety recall of foreign motor vehicles equipped with its defective OE. However, in the final rule, as discussed above, we have moved to a platform-based criterion. This means that, even if the same defective OE is used in both U.S. and foreign vehicles and in the same application, the vehicle manufacturer is not required to report the campaign to NHTSA if the two vehicles do not share a common platform (or qualify as substantially similar vehicles under one of the other three criteria). We have concluded that Johnson's suggestion provides greater clarity, and we are including language in final section 579.11(a) to clarify that the manufacturer making the determination to conduct a safety recall or other safety campaign is the manufacturer required to report to NHTSA. We are making a corresponding clarification in section 579.11(b) that it is the manufacturer that receives the notification from a foreign government that must report to NHTSA.

Executive Order 12866 and DOT Regulatory Policies and Procedures. This document was not reviewed under Executive Order 12866. It has been determined that the rulemaking action is not significant under Department of Transportation regulatory policies and procedures.

We estimate that fewer than 500 reports of foreign recalls and other safety campaigns will be submitted annually; some of these would involve parallel campaigns in multiple countries. The costs associated with this rule are minimal and are principally related to hours of burden. There would be costs in determining whether vehicles or equipment that are covered by a foreign recall or campaign are identical or substantially similar to vehicles and equipment sold in the United States, and there will be costs associated with preparing and submitting the annual list of substantially similar vehicles. The cost of determining which vehicles are substantially similar will be less under the final rule because the most relevant criterion will be commonality of the vehicle platform, rather than commonality of parts giving rise to the foreign campaign, as initially proposed. Moreover, the existence of the annual list will simplify this decision.

There will be costs to manufacturers to prepare and submit reports of these recalls and campaigns to the agency. If a determination has been made by a foreign government in a language other than English, a manufacturer would also have the cost of translating the determination before supplying it to us; however, currently such determinations are not made in any language other than English. Finally, there may be costs involved in searching out and filing reports with NHTSA that are related to foreign determinations made between November 1, 2000 and the effective date of the final rule. The costs would appear to be principally those of man-hours. We estimate that the costs will be less than $200,000 per year industry-wide. We sought comments from manufacturers on the estimated costs of meeting a final rule based on this proposal and received none.

Regulatory Flexibility Act. We have also considered the impacts of this rulemaking action in relation to the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). I certify that this rulemaking action does not have a significant economic impact upon a substantial number of small entities. The basis for this certification is that most manufacturers of motor vehicles and motor vehicle equipment that operate internationally are not small entities. Any small business that operates internationally is likely to have less than one report per year to send to NHTSA. Thus, the final rule is not economically significant, and no regulatory flexibility analysis has been prepared.

Executive Order 13132 (Federalism). Executive Order 13132 on “Federalism” requires us to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of “regulatory policies that have federalism implications.” The E.O. defines this phrase to include regulations “that have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule regulates the manufacturers of motor vehicles and motor vehicle equipment, will not have substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in E.O. 13132.

Civil Justice Reform. This final rule will not have a retroactive or preemptive effect, and judicial review of it may be obtained pursuant to 5 U.S.C. 702. That section does not require that a petition for reconsideration be filed prior to seeking judicial review.

Paperwork Reduction Act. The final rule requires a manufacturer of motor vehicles and motor vehicle equipment to report information and data to NHTSA if it decides to conduct, or if it is informed by a foreign government that it must conduct, a safety recall or other safety campaign in a country outside the United States. These provisions are considered to be information collection requirements, as that term is defined by the Office of Management and Budget (OMB) in 5 CFR part 1329. We published a Paperwork Reduction Act Notice on August 9, 2002 (67 FR 51925). Following receipt of comments, due by October 8, 2002, we will submit the required materials to OMB for its approval, pursuant to the requirements of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ).

Regulations governing the Atlantic bluefish fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota that is apportioned among the coastal states from Maine through Florida. The process to set the annual commercial quota and the percent allocated to each state is described in § 648.160.

The total commercial quota for bluefish for the 2002 calendar year was set equal to 10,500,000 lb (4,762,720 kg) (66 FR 23625, May 9, 2002). The resulting quotas for New York, Virginia, Florida, and Rhode Island were 1,090,436 lb (494,753 kg), 1,247,348 lb (565,787 kg), 1,056,269 lb (479,115 kg), and 714,851 lb (324,251 kg), respectively. Effective, September 12, 2002, (67 FR 57758) New York's quota was reduced by 216,064 lb (98,033 kg) to 874,372 lb (396,721 kg) and, effective October 8, 2002, (FR) Virginia's quota was reduced by 52,065 lb (23,623 kg) to 1,195,283 lb (541,833 kg).

The FMP allows two or more states, under mutual agreement and with the concurrence of the Administrator, Northeast Region, NMFS (Regional Administrator), to transfer or combine part or all of their annual commercial bluefish quotas. The Regional Administrator must consider the criteria set forth in § 648.160(f)(1) in the evaluation of requests for quota transfers or combinations.

Virginia, Florida, and Rhode Island have agreed to transfer 100,000 lb (45,372 kg), 200,000 lb (90,744 kg), and 125,000 lb (56,689 kg), respectively, of their 2002 adjusted commercial quotas to New York. The revised quotas for the calendar year 2002 following the transfer are: Virginia, 1,095,283 lb (496,952 kg), Florida, 856,269 lb (388,507 kg), Rhode Island 589,851 lb (267,506 kg), and New York, 1,299,372 lb (589,284 kg).

The Regional Administrator has determined that the criteria set forth in § 648.160(f)(1) have been met.

This action is taken under 50 CFR part 648 and is exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2002 Pacific cod TAC apportioned to vessels catching Pacific cod for processing by the offshore component in the Central Regulatory Area is 2,479 metric tons (mt) as established by an emergency rule implementing 2002 harvest specifications and associated management measures for the groundfish fisheries off Alaska (67 FR 956, January 8, 2002 and 67 FR 34860, May 16, 2002).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2002 Pacific cod TAC apportioned to vessels catching Pacific cod for processing by the offshore component of the Central Regulatory Area of the GOA will be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 1,979 mt, and is setting aside the remaining 500 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance will soon be reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by vessels catching Pacific cod for processing by the offshore component in the Central Regulatory Area of the GOA.

Maximum retainable bycatch amounts may be found in the regulations at § 679.20(e) and (f).

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is contrary to the public interest. This requirement is contrary to the public interest as it would delay the closure of the fishery, lead to exceeding the TAC, and therefore reduce the public's ability to use and enjoy the fishery resource.

The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.This action is required by § 679.20 and is exempt from review under Executive Order 12866.